[G.R. No. L-22526. November 29, 1966.

]
PEDRO PACIS, in his capacity as
Acting Collector of Customs, Port of
Manila,
the
Flag
Officer-inCommand
and
the
Base
Commander of Cavite Naval Base,
Philippine
Navy, petitioners, vs. HON.
ALBERTO V. AVERIA, Judge of the
Court of First Instance of Cavite,
PROCESO
P.
SILANGCRUZ,
Provincial Sheriff at Trece Martires
City
and
EUSEBIO
MARGES, respondents.
SYLLABUS
1. CERTIORARI; COURT CONFINED TO
QUESTIONS OF JURISDICTION IN
CERTIORARI PROCEEDINGS; FUNCTION
OF WRIT. In a certiorari proceeding, the
court is confined to questions of jurisdiction.
(Tuason vs. Concepcion, 54 Phil., 408.) The
reason is that the function of the writ of
certiorari is to keep an inferior court within its
jurisdiction. (Brillo vs. Buklatan, 87 Phil.,
519.) It is available for such purpose and not
to correct errors of procedure or mistakes in
the judge's findings or conclusion. (Regala vs.
Court of First Instance of Bulacan, 77 Phil.,
684; Ong Sit vs. Piccio, 78 Phil., 785;
Icutamin vs. Hernandez, 81 Phil. 161;
Verhomal vs. Tan, 88 Phil., 389; Association
of Beverages Employees vs. Figueras, 91
Phil., 450; Matute vs. Macadaeg, 99 Phil.,
340.)

2. TARIFF AND
CUSTOMS
LAWS;
SEIZURE
AND
FORFEITURE
PROCEEDINGS;
JURISDICTION
OF
COLLECTOR OF CUSTOMS. When the
original jurisdiction of the Court of First
Instance under Section 44(c) of the Judiciary
Act of 1948, as amended by Republic Act
3828, tends to encroach upon and to render
futile, the jurisdiction of the Collector of
Customs in seizure and forfeiture proceedings,
the Court of First Instance should yield to the
jurisdiction of the Collector of Customs,
because the jurisdiction of the latter is
provided for in Republic Act 1937 which took
effect on July 1, 1957, much later than the
Judiciary Act of 1948. It is axiomatic that a
later law prevails over a prior statute. (Herman
vs. Radio Corporation of the Philippines, 50
Phil. 490; Pampanga Sugar Mills vs. Trinidad,
279, U.S. 211, 73 L. ed. 665.) Moreover, it is
reasonable to conclude that the legislators
intended to divest the Court of First Instance
of the prerogative to replevin a property which
is a subject of a seizure and forfeiture
proceedings for violation of the Tariff and
Customs Code. Otherwise, actions for
forfeiture of property for violation of customs
laws could easily be undermined by the simple
device of replevin. Furthermore, Section 2303
of the Tariff and Customs Code which requires
the Collector of Customs to give to the owner
of the property sought to be forfeited written
notice of the seizure and to give him the
opportunity to be heard in his defenses, clearly
indicates the intention of the law to confine in
the Bureau of Customs the determination of
all questions affecting the disposal of property
proceeded against in a seizure and forfeiture
case. The judicial recourse of the property

owner is not in the Court of First Instance but

in the Court of Tax Appeals, and only after
exhausting administrative remedies in the
Bureau of Customs.
3. CONTEMPT OF COURT; LIABILITY OF
SHERIFF FOR FAILURE TO ENFORCE
WRIT OF PRELIMINARY MANDATORY
INJUNCTION; CASE AT BAR. Under the
circumstances obtaining in the case at bar, it
cannot but be concluded that respondent
Sheriff's failure to enforce the writ of
preliminary mandatory injunction issued by
the Supreme Court, and his failure to make a
return thereof for quite a time had in effect
prevented the Court from taking possession of
the vessel in question, thus directly interfering
impeding or obstructing its processes. The
respondent Sheriff's non-performance has
resulted in the frustration of the mandates of
the Supreme Court and the setback of the
administration of Justice. The Court can not
tolerate evasion of its commands by any
omission, negligence, artifice or contrivance
of any kind, nor would it countenance any
disregard of its authority. It is essential to the
effective administration of justice that the
processes of the courts be obeyed. Upon no
one else does this obligation of obedience rest
with more binding force than a judicial officer
such as respondent Sheriff. The said
respondent is therefore liable for contempt
punishable under Section 6 of Rule 71 of the
Rules of Court.

DECISION

BENGZON, J.P., J p:
The success of the law enforcement agencies
in curbing smuggling depends to some extent
upon the cooperation of the other branches of
the Government. Remove such cooperation
and the campaign against smuggling is
doomed, as concretely demonstrated in this
case.
On December 26, 1963 Coast Guard Cutter
115 of the Philippine Navy pursued a fishing
boat bearing the name of M/B "Bukang
Liwayway" off Ternate, Cavite. During the
chase the fishing boat fired upon the navy
cutter thus wounding two Philippine Navy
sailors. Said fishing boat was boarded and
found loaded with untaxed foreign made
cigarettes, to wit:
495 cases Union
cigarettes
1,385 cartons Union
cigarettes
3,197 packs Union
cigarettes
88 cases Chesterfield
cigarettes
498 carton Chesterfield
cigarettes
87 cases Salem
cigarettes
799 cartons Salem
cigarettes
50 cartons Winston
cigarettes

The cigarettes and the fishing boat were

confiscated and turned over to the Flag officer
in command of the Philippine naval base at
Cavite City. On December 27, 1963 the
cigarettes were delivered to the custody of the
Bureau of Customs.
On January 13, 1964 Pedro Pacis, acting
Collector of Customs of Manila, commenced
seizure and forfeiture proceedings pursuant to
Title VI of the Tariff and Customs
Code (Republic Act No. 1937) by issuing a
warrant of seizure and detention against the
cigarettes and M/B "Bukang Liwayway",
docketed as Manila Seizure Identification Nos.
8009 and 8009-A. On the same day, Eusebio
Marges, the alleged owner of M/B "Bukang
Liwayway", filed Civil Case No. TM-114 in
the Court of First Instance at Trece Martires
City for replevin against the Flag officer of the
Philippine Navy and others, alleging that said
fishing boat was stolen on December 15, 1963
while moored at Caacao Bay, Cavite City;
and that notice of loss was reported on
December 16, 1963 to the Philippine
Constabulary, Cavite City Police and the
Collector of Customs of Manila.
On January 14, 1964, before defendants filed
their answer but after Marges posted a surety
bond in the amount of P40,000.00, His Honor,
Judge Alberto V. Averia, issued a writ of
replevin commanding the provincial sheriff of
Cavite at Trece Martires City to take
immediate possession of the M/B "Bukang
Liwayway", retain the same in his custody and
keep it and/or dispose of it according to law.
On the following day the provincial sheriff
served the writ upon the commanding officer
of the Philippine Naval base at Cavite City.

The latter, however, refused to surrender

custody over the vessel. On January 16, 1964,
acting upon the sheriff's manifestation, the
court ordered the arrest of the naval base
commander for contempt of court. On the
same day said base commander filed an urgent
motion to lift writ of replevin and order of
arrest.
On January 20, 1964 the Republic of the
Philippines, through the Bureau of Customs,
filed a motion for intervention. Then on
January 27, 1964 the Republic and defendant
base commander filed a motion to dismiss the
complaint and to lift the writ of replevin on the
grounds that the Court of First Instance has no
jurisdiction over the object in litigation (M/B
"Bukang Liwayway"), the same being the
subject of seizure proceedings in the Bureau of
Customs; that the action for replevin was
premature inasmuch as administrative
remedies have not been exhausted; that a
criminal action for smuggling was being
prepared against Marges under which case
M/B "Bukang Liwayway" would be liable for
forfeiture, as an instrument of the crimes; and
that the surety bond of P40,000.00 was
insufficient. The Court denied the motion to
lift writ of replevin on February 17, 1964 but
ordered Marges to post an additional surety
bond of P60,000.00.
Marges posted the additional surety bond of
P60,000.00 and on February 20, 1964
defendant Flag Officer of the Philippine Navy
delivered the M/B "Bukang Liwayway" to
Provincial Sheriff Proceso P. Silangcruz
without the previous knowledge and consent
of the Collector of Customs of Manila.

Acting on the belief that the provincial sheriff

was about to deliver M/B "Bukang
Liwayway" to its owner, the Collector of
Customs of Manila and the Commander of the
Philippine Naval Base of Cavite City filed
with this Court on February 29, 1964 the
instant petition for certiorari with preliminary
injunction.
Not known however to the Customs and
Philippine Navy authorities, Provincial Sheriff
Proceso P. Silangcruz had delivered the M/B.
"Bukang Liwayway" on February 25, 1964 to
Eusebio Marges. On March 2, 1964, after the
filing of the petition for certiorari in this
Court, petitioners received an order dated
February 21, 1964 of the lower court denying
their motion to dismiss and to lift writ of
replevin.
On March 4, 1964 We required the
respondents, Honorable Alberto V. Averia,
Judge of the Court of First Instance of Cavite,
Proceso P. Silangcruz, Provincial Sheriff of
Cavite, and Eusebio Marges, to answer the
petition for certiorari, and at the same time
granted, without bond, preliminary prohibitory
mandatory
injunction,
enjoining
the
respondent Judge and Sheriff together with
their agents from enforcing the writ of
replevin of January 14, 1964 and order dated
February 17, 1964; prohibiting them further
from delivering the M/B "Bukang Liwayway"
to Eusebio Marges; and commanding them to
deliver said vessel to petitioners. Respondent
Sheriff however manifested on March 17,
1964 that he had already delivered the vessel
in question to its owner on February 25, 1964
after petitioners failed to object to the
sufficiency of the surety bond filed by Eusebio

Marges and after they failed to file a

counterbond needed for the retention of the
vessel.
On April 22, 1964 this court issued another
preliminary writ: Writ of preliminary
mandatory injunction, commanding the
Provincial Sheriff of Cavite to take possession
again of M/B "Bukang Liwayway" and to
keep the same under his custody until further
orders from this Court. Respondent Sheriff
received copy of the writ of preliminary
mandatory injunction on April 28, 1964. For
more than one month said sheriff did not make
a return of the writ. Not until the Solicitor
General moved on June 3, 1964 to require
respondent Sheriff to report to this Court
whether or not he has complied with the
aforesaid writ and, if so, to order him to allow
petitioners and their agents to inspect the
vessel in question but, if not, to require him to
show causes why he may not be declared in
contempt of court. When asked to comment on
the Solicitor's motion, respondent Sheriff on
June 11, 1964 returned the writ unsatisfied,
stating that said writ was served upon Eusebio
Marges, owner of M/B "Bukang Liwayway"
on April 30, 1964 who informed him in
writing that the vessel in question was on a
fishing expedition; that Marges promised to
surrender the same upon its return; and that
despite diligent efforts said vessel could not be
located.
On July 22, 1964 this Court required
respondent Sheriff to show cause why he
should not be dealt with for contempt of court.
Said Sheriff submitted his explanation on

August 11, 1964 restating the allegations in his

return filed with this Court on June 11, 1964.
The Solicitor General filed his comment
thereon on September 2, 1964 recommending
that respondent Sheriff be declared in
contempt of court.
On the basis of respondent Sheriff's
explanation and the comment of the Solicitor
General this Court once more required said
Sheriff to show cause within ten days why he
should not be dealt with in contempt of court.
In compliance, he manifested on September
25, 1964 the following: (1) On August 15,
1964 he caused to be served on, and delivered
to, Eusebio Marges his letter dated August 13,
1964 which reads:
"This is in connection with
the Writ of Preliminary
Mandatory Injunction issued
by the Hon. Supreme Court in
G.R. No. L-22526, entitled
'Pedro Pacis, et al. vs. Hon.
Alberto V. Averia, et al.',
requiring the undersigned
Provincial Sheriff to take
possession of the motor boat,
'M/B
BUKANG
LIWAYWAY,' which writ was
served upon you on April 30,
1964.
"Please
inform
the
undersigned whether the said
motor boat which you alleged
had
been
on
fishing
expedition
has
already
arrived inasmuch as more
than three (3) months have

already elapsed since the writ

was served upon you, and in
the event that the motor boat
is still in the fishing
expedition, you are hereby
required to contact forthwith
the crew members thereof
and direct them to proceed
home immediately, in order
that the writ issued by the
Hon. Supreme Court may be
complied with."
(2) Eusebio Marges replied by letter dated
August 24, 1964, to wit:
"I would like to inform you
that the M/B BUKANG
LIWAYWAY was due to
arrive last week, but up to the
present I have not heard of its
whereabouts. I am afraid that
the said boat might be lost
due to several typhoons.
"Assistance of the Philippine
Constabulary Commander of
Cavite was asked to locate
the whereabouts of said
motor boat, as per copy of the
letter hereto attached.
"Please be rest assured that I
will not hesitate to surrender
the said boat to you as soon
as it is located."
Marges' letter to the Provincial Commander of
Cavite states:

"My fishing boat, M/B

BUKANG LIWAYWAY was
due to arrive from Palawan
last
Thursday
morning
August 6, 1964, but up to the
present, it has not arrived at
our place at Rosario, Cavite.
"I am afraid that due to the
storm 'Senyang', my said boat
might have been caught by
said storm on its way home,
so please help us locate my
boat for the safety of the
eight (8) crew members on
board the boat.
"I have sent similar request to
the Provincial Commanders
of Mindoro, Batangas and
Bataan asking their help in
locating my boat as well as
my crew members. Please
inform
me
of
any
development."
(3) On September 1, 1964 respondent Sheriff
sent the following communication to the
Provincial Commander of the Philippine
Constabulary in Cavite:
"I am in receipt of a letter of
Mr. Eusebio Marges dated
August 24, 1964 regarding
the
motor
boat
M/B
BUKANG
LIWAYWAY',
copy of which is hereto
attached.
"Please
inform
the
undersigned as to what action

or step your command has

taken on the request of Mr.
Marges."
to which the Provincial Commander made the
following reply:
"Respectfully returned to Mr.
Proceso
P.
Silangcruz,
Provincial Sheriff of Cavite,
Trece Martires City, the
herein attached true copy of
the original communication
with the information that all
shoreline troops detailed to
look for the M/B 'Bukang
Liwayway' failed to locate
the same.
"No definite information has
as yet been obtained as to the
whereabouts of the boat,
hence, this Command is still
in the process of looking for
it.
"Rest assured that whatever
progress made of the search
will be sent to the Office."
(4) Again respondent Sheriff addressed a letter
dated September 15, 1964 to the Cavite
Provincial Commander in the following tenor:
"Relative
your
1st
Indorsement dated September
4, 1964, assuring this office
that further information will
be furnished regarding the
motor boat M/B 'Bukang
Liwayway', please inform the

undersigned of whatever
progress your command has
made on the subject matter in
view of the Writ of
Preliminary Injunction issued
by the Honorable Court."
(5) On September 11 and 16, 1964 respondent
Sheriff telegrammed the PC Provincial
Commanders of Batangas, Palawan, Mindoro
and Butuan requesting their help to locate the
M/B "Bukang Liwayway" but he has not
received any answer thereto.
Treating the motion of the Solicitor General
dated June 3, 1964 as a written charge for
contempt against Provincial Sheriff Proceso P.
Silangcruz and the latter's comment thereto as
his answer, this Court set the contempt
incident for hearing on September 21, 1966.
Only the counsel for Provincial Sheriff
Proceso P. Silangcruz appeared.
Up to now respondent Provincial Sheriff has
not taken custody of the motor boat in
question.
The issues are:
1. Whether or not petitioners
could elevate the case
at bar to this Court on
a
petition
for
certiorari.
2. Whether or not the owner
of M/B "Bukang
Liwayway"
could
recover possession of
the same by way of a

civil
case
replevin; and

with

3. Whether or not Provincial

Sheriff Proceso P.
Silangcruz may be
adjudged in contempt
of the Supreme Court
for failure to comply
with the writ of
preliminary
mandatory injunction
issued in this case on
April 22, 1964.
The first issue is on the availability of the
remedy of certiorari with preliminary
injunction. It is pressed that the order of the
lower court dated February 17, 1964 denying
the motion to dismiss and to lift the writ of
replevin is an interlocutory order, hence not
appealable.
It should be remembered that the case before
Us is not an appeal. It is a special civil action
of certiorari under Section 1 of Rule 65 of the
Rules of Court to annul the aforesaid order for
having been rendered without or in excess of
the lower court's jurisdiction. The points of
inquiry therefore should be on whether or not
the respondent court acted without or in
excess of its jurisdiction and whether or not
there is an appeal or any plain, speedy and
adequate remedy in the ordinary course of law.
The pertinent provision of the Rules of Court
reads:1
"Section
1. Petition
for
certiorari
When
any
tribunal, board, or officer

exercising judicial functions,

has acted without or in excess
of its or his jurisdiction, or
with grave abuse of discretion
and there is no appeal, nor
any plain, speedy, and
adequate remedy in the
ordinary course of law, a
person aggrieved thereby
may file a verified petition in
the proper court alleging the
facts with certainty and
praying that judgment be
rendered
annulling
or
modifying the proceedings, as
the law requires, of such
tribunal, board or officers."
In a certiorari proceeding under the abovequoted rule, the court is confined to questions
of jurisdiction.2 The reason is that the function
of the writ of certiorari is to keep an inferior
court within its jurisdiction.3 It is available for
such purpose and not to correct errors of
procedure or mistakes in the judge's findings
or conclusion.4 Precisely, in this case,
petitioners are assailing the jurisdiction of the
Court of First Instance of Cavite to issue the
order of February 17, 1964.
The parties have not put in controversy the
non-availability of appeal or any plain, speedy
and adequate remedy in the ordinary course of
law. Appeal is not open to them for We have
already set at course the ruling that denial of a
motion to dismiss a complaint does not entitle
a party whose motion is denied to forthwith
appeal therefrom.5 Respondents have pointed
out however that petitioners failed to allege
such fact in their petition for certiorari. Aside

from the fact that the absence of appeal and

similar ordinary remedies is patent from the
petition's allegations the defect, if any, has
been cured by the allegation in paragraph 17
of the supplemental petition expressly stating
the same.
Certiorari was therefore properly brought.
We now come to the propriety of the filing of
Civil Case No. TM- 114 in the Court of First
Instance of Cavite for the purpose of
recovering possession of MB "Bukang
Liwayway" which was then held in detention
by the Philippine Navy in the Cavite Naval
base for the Bureau of Customs which
instituted seizure and forfeiture proceedings
(Seizure Identification Nos. 8009 & 8009-A)
against it.
At issue is the jurisdiction of the Court of First
Instance of Cavite to entertain Civil Case No.
TM-114, and the existence of therein
plaintiff's cause of action.
Petitioners would contend that the jurisdiction
of the Bureau of Customs to conduct seizure
and forfeiture proceedings of vessels for
violation of the Tariff and Customs Code is
exclusive of the Courts of First Instance. They
would further maintain that the issuance of a
writ of replevin, as what actually transpired in
this case, will prevent the Bureau of Customs
from further proceeding with the seizure and
forfeiture for allegedly under Section 2531 of
the Tariff and Customs Code, forfeiture could
be effected only when and while the thing
subject to forfeiture is in the custody of the
Bureau of Customs.

The Tariff and Customs Code, in Section 2530

thereof, lists the kinds of property subject to
forfeiture. At the same time, in Part 2 of Title
VI thereof, it provides for the procedure in
seizure and forfeiture cases and vests in the
Collector of Customs the authority to hear and
decide said cases.6 The Collector's decision is
appealable to the Commissioner of
Customs7 whose decision is in turn appealable
to the Court of Tax Appeals.8 An aggrieved
party may appeal from a judgment of the
Court of Tax Appeals directly to this
Court.9 On the other hand, Section 44 (c) of
the Judiciary Act of 1948 10 lodges in the
Court of First Instance original jurisdiction in
all cases in which the value of the property in
controversy amounts to more than ten
thousand pesos. This original jurisdiction of
the Court of First Instance, when exercised in
an action for recovery of personal property
which is a subject of a forfeiture proceeding in
the Bureau of Customs, tends to encroach
upon, and to render futile, the jurisdiction of
the Collector of Customs in seizure and
forfeiture proceedings. This is precisely what
took place in this case. The seizure and
forfeiture proceedings against the M/B
"Bukang Liwayway" before the Collector of
Customs of Manila was stifled by the issuance
of a writ of replevin by the Court of First
Instance of Cavite.
Should Section 44(c) of the Judiciary Act of
1948 give way to the provisions of the Tariff
and Customs Code, or vice versa? In Our
opinion, in this particular case, the Court of
First Instance should yield to the jurisdiction
of the Collector of Customs. The jurisdiction
of the Collector of Customs is provided for

in Republic Act 1937 which took effect on

July 1, 1957, much later than the Judiciary Act
of 1948. It is axiomatic that a later law
prevails over a prior statute. 11 Moreover, on
grounds of public policy, it is more reasonable
to conclude that the legislators intended to
divest the Court of First Instance of the
prerogative to replevin a property which is a
subject of a seizure and forfeiture proceedings
for violation of the Tariff and Customs Code.
Otherwise, actions for forfeiture of property
for violation of Customs laws could easily be
undermined by the simple device of replevin.
Furthermore, Section 2303 of the Tariff and
Customs Code requires the Collector of
Customs to give to the owner of the property
sought to be forfeited written notice of the
seizure and to give him the opportunity to be
heard in his defense. This provision clearly
indicates the intention of the law to confine in
the Bureau of Customs the determination of all
questions affecting the disposal of property
proceeded against in a seizure and forfeiture
case. The judicial recourse of the property
owner is not in the Court of First Instance but
in the Court of Tax Appeals, and only after
exhausting administrative remedies in the
Bureau of Customs.
We come to the last question whether or not
respondent Provincial Sheriff Proceso P.
Silangcruz is in contempt of this Court for
failure to comply with the writ of preliminary
mandatory injunction issued by this Court on
April 22, 1964.
The writ of preliminary mandatory injunction
was received by respondent Provincial Sheriff
Proceso P. Silangcruz on April 28, 1964.

Thenceforth, nothing was heard of the writ nor

from said Sheriff. Only after June 3, 1964
when the Solicitor General filed a motion
charging him of contempt of court for noncompliance with the writ did Provincial
Sheriff Proceso P. Silangcruz oblige himself to
make a return of the writ, informing Us that he
could not enforce the same because the subject
vessel was out on a fishing expedition. For
this undue delay in making a return on the
writ, respondent Sheriff offered no
explanation.
Such conduct of Sheriff Silangcruz is a far cry
from his behavior on January 16, 1964 when
he made not merely a return of the writ of
replevin but a manifestation before the Court
of First Instance of Cavite ONE DAY after he
served the same advising said court of the
refusal of the Philippine Navy Commander to
obey it and praying for the arrest of said
Commander for contempt of court. It is also a
great contrast from his excellent efficiency in
delivering the subject vessel to its owner
notwithstanding the absence of an express
order from the court and one day earlier than
the time provided for in the Rules of Court.
On those two occasions he was in the process
of obtaining possession for the vessel's owner.
Incidentally, and of course We fully
comprehend the situation, the writ issued by
this Court would deprive the alleged boat
owner of possession over the boat, thus
putting to naught respondent Sheriff's previous
efforts.
The more than one month's time when the writ
of preliminary mandatory injunction stayed
frozen in the hands of Sheriff Silangcruz made
it possible for interested parties to whisk the

boat in question from the reach of the law. The

boat allegedly disappeared and the respondent
Sheriff together with the alleged boat owner
conveniently put the blame for its alleged
disappearance on typhoon Senyang. They
insinuate that M/B "Bukang Liwayway" was
sunk or wrecked on its way from Palawan to
Cavite by said typhoon. Probably, Sheriff
Silangcruz and boat owner Marges were
misinformed about typhoon Senyang. The
official
reports
of
the
Weather
Bureau, 12considered as within judicial
notice, do not indicate that said typhoon
affected Palawan and Cavite. On August 5,
1964 said typhoon was in the Pacific Ocean,
690 miles East of Manila. On August 6, 1964
it was 670 miles East Southeast of Casiguran,
Quezon. On August 7, typhoon Senyang hit
Southern Luzon causing heavy rains to fall in
the Manila-Cavite area but it turned North to
Cagayan Province and the Batanes. Then it
blew towards the China Sea, Hongkong and
the Gulf of Tongkin. Very prominent,
however, is the report of Col. Segundo L.
Gazmin, II PC Zone Commander about one
fishing boat (from Cavite) missing carrying 20
crew members. The M/B "Bukang Liwayway"
had only eight crew members on board.
Undoubtedly, the missing boat could not have
been the M/B "Bukang Liwayway."
One more thing. It has caught our notice,
especially because the Solicitor General called
our attention, that respondent Sheriff has
practically taken the cudgels for boat owner
Eusebio Marges in this proceeding for
certiorari. In his answers to the petition for
certiorari and to the supplemental petition, he
went beyond justifying his official acts and

proceeded to espouse the cause of the boat

owner thereby giving the impression that his
interest in the case and in the subject matter of
this litigation is more than just the interest of a
public official complying with his duties as
such.
On the foregoing premises, We are constrained
to conclude that respondent Sheriff's failure to
enforce the writ and his failure to make a
return thereof for quite a time had in effect
prevented this Court from taking possession of
M/B "Bukang Liwayway", thus directly
interfering, impeding or obstructing the
processes of this Court. The respondent
Sheriff's non-performance has resulted in the
frustration of the mandates of this Court and
the setback of the administration of justice.
This Court can not tolerate evasion of its
commands, by any omission, negligence,
artifice or contrivance of any kind, nor would
it countenance any disregard of its authority.
For it is essential to the effective
administration of justice that the processes of
the courts be obeyed. And upon no one does
this obligation of obedience rest with more
binding force than a judicial officer such as
respondent Sheriff.13
We therefore find and declare Provincial
Sheriff Proceso P. Silangcruz guilty of
contempt of the Supreme Court punishable
under Section 6 of Rule 71 of the Rules of
Court.
WHEREFORE, the petition for certiorari is
granted. The writ of replevin issued on
January 14, 1964 and the order issued on
February 17, 1964 by the Court of First
Instance of Cavite are hereby declared null

and void. The mandatory injunction of April

22, 1964 to deliver the Boat M/B "Bukang
Liwayway" is hereby reiterated.
Respondent Sheriff of Cavite, Proceso P.
Silangcruz, is hereby declared in contempt of
the Supreme Court, and considering all
attendant circumstances, sentenced to
imprisonment of six months and to pay a fine
of P1,000.00. No pronouncement as to costs.
So ordered.
||| (Pacis v. Averia, G.R. No. L-22526,
[November 29, 1966], 124 PHIL 1541-1556)
[G.R. No. 81552. May 28, 1990.]
DIONISIO FIESTAN and JUANITA
ARCONADO, petitioners, vs. COUR
T OF APPEALS; DEVELOPMENT
BANK OF THE PHILIPPINES,
LAOAG CITY BRANCH;
PHILIPPINE NATIONAL BANK,
VIGAN BRANCH, ILOCOS SUR;
FRANCISCO PERIA; and
REGISTER OF DEEDS OF
ILOCOS SUR, respondents.

DECISION

FERNAN, C.J p:
In this petition for review on
certiorari, petitioners spouses Dionisio
Fiestan and Juanita Arconada, owners of a
parcel of land (Lot No. 2-B) situated in

Ilocos Sur covered by TCT T-13218

which
they
mortgaged
to
the
Development Bank of the Philippines
(DBP) as security for their P22,400.00
loan, seek the reversal of the decision of
the Court of Appeals 1 dated June 5, 1987
affirming the dismissal of their complaint
filed against the Development Bank of the
Philippines,
Laoag
City
Branch,
Philippine National Bank, Vigan Branch,
Ilocos Sur, Francisco Peria and the
Register of Deeds of Ilocos Sur, for
annulment of sale, mortgage, and
cancellation of transfer certificates of title.
Records show that Lot No. 2-B
was acquired by the DBP as the highest
bidder at a public auction sale on August
6, 1979 after it was extrajudicially
foreclosed by the DBP in accordance
with Act No. 3135, as amended by Act
No. 4118, for failure of petitioners to pay
their mortgage indebtedness. A certificate
of sale was subsequently issued by the
Provincial Sheriff of Ilocos Sur on the
same day and the same was registered on
September 28, 1979 in the Office of the
Register of Deeds of Ilocos Sur. Earlier,
or on September 26, 1979, petitioners
executed a Deed of Sale in favor of DBP
which was likewise registered on
September 28, 1979.
Upon failure of petitioners to
redeem the property within the one (1)
year period which expired on September
28, 1980, petitioners' TCT T-13218 over
Lot No. 2-B was cancelled by the Register
of Deeds and in lieu thereof TCT T-19077
was issued to the DBP upon presentation

of a duly executed affidavit

consolidation of ownership.

of

On April 13, 1982, the DBP sold

the lot to Francisco Peria in a Deed of
Absolute Sale and the same was registered
on April 15, 1982 in the Office of the
Register of Deeds of Ilocos Sur.
Subsequently, the DBP's title over the lot
was cancelled and in lieu thereof TCT T19229 was issued to Francisco Peria.
After title over said lot was issued
in his name, Francisco Peria secured a tax
declaration for said lot and accordingly
paid the taxes due thereon. He thereafter
mortgaged said lot to the PNB-Vigan
Branch as security for his loan of
P115,000.00 as required by the bank to
increase his original loan from P49,000.00
to P66,000.00 until it finally reached the
approved amount of P115,000.00. Since
petitioners were still in possession of Lot
No. 2-B, the Provincial Sheriff ordered
them to vacate the premises.
On the other hand, petitioners filed
on August 23, 1982 a complaint for
annulment of sale, mortgage and
cancellation of transfer certificates of title
against the DBP-Laoag City, PNB-Vigan
Branch, Ilocos Sur, Francisco Peria and
the Register of Deeds of Ilocos Sur,
docketed as Civil Case No. 3447-V before
the Regional Trial Court of Vigan, Ilocos
Sur.
After trial, the RTC of Vigan,
Ilocos Sur, Branch 20, rendered its
decision 2 on November 14, 1983
dismissing the complaint, declaring

therein, as valid the extrajudicial

foreclosure sale of the mortgaged property
in favor of the DBP as highest bidder in
the public auction sale held on August 6,
1979, and its subsequent sale by DBP to
Francisco Peria as well as the real estate
mortgage constituted thereon in favor of
PNB-Vigan as
security for the
P115,000.00 loan of Francisco Peria.
The Court of Appeals affirmed the
decision of the RTC of Vigan, Ilocos Sur
on June 20, 1987.
The motion for reconsideration
having been denied 3 on January 19,
1988, petitioners filed the instant petition
for review on certiorari with this Court.
Petitioners seek to annul the
extrajudicial foreclosure sale of the
mortgaged property on August 6, 1979 in
favor of the Development Bank of the
Philippines (DBP) on the ground that it
was conducted by the Provincial Sheriff
of Ilocos Sur without first effecting a levy
on said property before selling the same at
the public auction sale. Petitioners thus
maintained
that
the
extrajudicial
foreclosure sale being null and void by
virtue of lack of a valid levy, the
certificate of sale issued by the Provincial
Sheriff cannot transfer ownership over the
lot in question to the DBP and
consequently the deed of sale executed by
the DBP in favor of Francisco Peria and
the real estate mortgage constituted
thereon by the latter in favor of PNBVigan Branch are likewise null and void.

The Court finds these contentions

untenable.
The formalities of a levy, as an
essential requisite of a valid execution
sale under Section 15 of Rule 39 and a
valid attachment lien under Rule 57 of the
Rules of Court, are not basic requirements
before an extrajudicially foreclosed
property can be sold at public auction. At
the outset, distinction should be made of
the three different kinds of sales under the
law, namely: an ordinary execution sale, a
judicial foreclosure sale, and an
extrajudicial foreclosure sale, because a
different set of law applies to each class of
sale mentioned. An ordinary execution
sale is governed by the pertinent
provisions of Rule 39 of the Rules of
Court. Rule 68 of the Rules of Court
applies in cases of judicial foreclosure
sale. On the other hand, Act No. 3135, as
amended by Act No. 4118 otherwise
known as "An Act to Regulate the Sale of
Property under Special Powers Inserted in
or Annexed to Real Estate Mortgages"
applies in cases of extrajudicial
foreclosure sale.
The case at bar, as the facts
disclose, involves am extrajudicial
foreclosure sale. The public auction sale
conducted on August 6, 1979 by the
Provincial Sheriff of Ilocos Sur refers to
the "sale" mentioned in Section 1 ofAct
No. 3135, as amended, which was made
pursuant to a special power inserted in or
attached to a real estate mortgage made as
security for the payment of money or the
fulfillment of any other obligation. It must

be noted that in the mortgage contract,

petitioners, as mortgagor, had appointed
private respondent DBP, for the purpose
of extrajudicial foreclosure, "as his
attorney-in-fact to sell the property
mortgaged under Act No. 3135, as
amended, to sign all documents and
perform any act requisite and necessary to
accomplish said purpose . . . . In case of
foreclosure, the Mortgagor hereby
consents to the appointment of the
mortgagee or any of its employees as
receiver, without any bond, to take charge
of the mortgaged property at once, and to
hold possession of the same . . . ." 4
There is no justifiable basis,
therefore, to apply by analogy the
provisions of Rule 39 of the Rules of
Court on ordinary execution sale,
particularly Section 15 thereof as well as
the jurisprudence under said provision, to
an
extrajudicial
foreclosure
sale
conducted under the provisions of Act No.
3135, as amended. Act No. 3135, as
amended, being a special law governing
extrajudicial foreclosure proceedings, the
same must govern as against the
provisions on ordinary execution sale
under Rule 39 of the Rules of Court.
In that sense, the case of Aparri v.
Court of Appeals, 13 SCRA 611 (1965),
cited by petitioners, must be distinguished
from the instant case. On the question of
what should be done in the event the
highest bid made for the property at the
extrajudicial foreclosure sale is in excess
of the mortgage debt, this Court applied
the rule and practice in a judicial

foreclosure sale to an extrajudicial

foreclosure sale in a similar case
considering that the governing provisions
of law as mandated by Section 6 of Act
No.
3135,
as
amended,
specifically Sections 29, 30 and 34 of
Rule 39 of the Rules of Court (previously
Sections 464, 465 and 466 of the Code of
Civil Procedure) are silent on the matter.
The said ruling cannot, however, be
construed as the legal basis for applying
the requirement of a levy under Section
15 of Rule 39 of the Rules of Court before
an extrajudicially foreclosed property can
be sold at public auction when none is
expressly required under Act No. 3135, as
amended.
Levy, as understood under Section
15, Rule 39 of the Rules of Court in
relation to execution of money judgments,
has been defined by this Court as the act
whereby a sheriff sets apart or
appropriates for the purpose of satisfying
the command of the writ, a part or the
whole
of
the
judgment-debtor's
property. 5
In extrajudicial foreclosure of
mortgage, the property sought to be
foreclosed need not be identified or set
apart by the sheriff from the whole mass
of property of the mortgagor for the
purpose of satisfying the mortgage
indebtedness. For, the essence of a
contract of mortgage indebtedness is that
a property has been identified or set apart
from the mass of the property of the
debtor-mortgagor as security for the
payment of money or the fulfillment of an

obligation to answer the amount of

indebtedness, in case of default of
payment. By virtue of the special power
inserted or attached to the mortgage
contract, the mortgagor has authorized the
mortgagee-creditor or any other person
authorized to act for him to sell said
property in accordance with the
formalities required under Act No. 3135,
as amended.
The Court finds that the
formalities prescribed under Sections 2, 3
and 4 of Act No. 3135, as amended, were
substantially complied with in the instant
case. Records show that the notices of
sale were posted by the Provincial Sheriff
of Ilocos Sur and the same were published
in Ilocos Times, a newspaper of general
circulation in the province of Ilocos Sur,
setting the date of the auction sale on
August 6, 1979 at 10:00 a.m. in the Office
of the Sheriff, Vigan, Ilocos Sur. 6
The nullity of the extrajudicial
foreclosure sale in the instant case is
further sought by petitioners on the
ground that the DBP cannot acquire by
purchase the mortgaged property at the
public auction sale by virtue of par. (2) of
Article 1491 and par. (7) of Article 1409
of the Civil Code which prohibits agents
from acquiring by purchase, even at a
public or judicial auction either in person
or through the mediation of another, the
property whose administration or sale
may have been entrusted to them unless
the consent of the principal has been
given.

The contention is erroneous.

The prohibition mandated by par.
(2) of Article 1491 in relation to Article
1409 of the Civil Code does not apply in
the instant case where the sale of the
property in dispute was made under a
special power inserted in or attached to
the real estate mortgage pursuant to Act
No. 3135, as amended. It is a familiar rule
of statutory construction that, as between
a specific statute and general statute, the
former must prevail since it evinces the
legislative intent more clearly than a
general
statute
does. 7 The Civil
Code (R.A. 386) is of general character
while Act No. 3135 as amended, is a
special enactment and therefore the latter
must prevail. 8
Under Act No. 3135, as amended,
a mortgagee-creditor is allowed to
participate in the bidding and purchase
under the same conditions as any other
bidder, as in the case at bar, thus:
"Section 5. At
any sale, the creditor,
trustee, or other person
authorized to act for the
creditor,
may
participate
in
the
bidding and purchase
under
the
same
conditions as any other
bidder,
unless
the
contrary
has
been
expressly provided in
the mortgage or trust
deed under which the
sale is made."

In other words, Section 5 of Act

No. 3135, as amended, creates and is
designed to create an exception to the
general rule that a mortgagee or trustee in
a mortgage or deed of trust which
contains a power of sale on default may
not become the purchaser, either directly
or through the agency of a third person, at
a sale which he himself makes under the
power. Under such an exception, the title
of the mortgagee-creditor over the
property cannot be impeached or defeated
on the ground that the mortgagee cannot
be a purchaser at his own sale.
Needless to state, the power to
foreclose is not an ordinary agency that
contemplates
exclusively
the
representation of the principal by the
agent but is primarily an authority
conferred upon the mortgagee for the
latter's own protection. It is an ancillary
stipulation supported by the same cause or
consideration for the mortgage and forms
an essential and inseparable part of that
bilateral agreement. 9 Even in the absence
of statutory provision, there is authority to
hold that a mortgagee may purchase at a
sale under his mortgage to protect his own
interest or to avoid a loss to himself by a
sale to a third person at a price below the
mortgage debt. 10 The express mandate of
Section 5 of Act No. 3135, as amended,
amply protects the interest of the
mortgagee in this jurisdiction.
WHEREFORE, in view of the
foregoing, the petition is DENIED for
lack of merit and the decision of the Court

of Appeals dated June 20, 1987 is hereby

AFFIRMED. No cost.
SO ORDERED.
||| (Fiestan v. Court of Appeals, G.R. No.
81552, [May 28, 1990], 264 PHIL 364-374)
[G.R. No. L-41631. December 17, 1976.]
HON. RAMON D. BAGATSING, as
Mayor of the City of Manila;
ROMAN G. GARGANTIEL, as
Secretary to the Mayor; THE
MARKET ADMINISTRATOR; and
THE MUNICIPAL BOARD OF
MANILA, petitioners,vs. HON.
PEDRO A. RAMIREZ, in his
capacity as Presiding Judge of the
Court of First Instance of Manila,
Branch
XXX
and
the
FEDERATION
OF
MANILA
MARKET
VENDORS,
INC., respondents.

DECISION

MARTIN, J p:
The chief question to be decided in this case is
what law shall govern the publication of a tax
ordinance enacted by the Municipal Board of
Manila, the Revised City Charter (R.A. 409,
as amended), which requires publication of the
ordinance before its enactment and after its
approval, or the Local Tax Code (P.D. No.

231), which only demands publication after

approval. cd
On June 12, 1974, the Municipal Board of
Manila enacted Ordinance No. 7522, "AN
ORDINANCE
REGULATING
THE
OPERATION OF PUBLIC MARKETS AND
PRESCRIBING FEES FOR THE RENTALS
OF STALLS AND PROVIDING PENALTIES
FOR VIOLATION THEREOF AND FOR
OTHER PURPOSES." The petitioner City
Mayor, Ramon D. Bagatsing, approved the
ordinance on June 15, 1974.
On February 17, 1975, respondent Federation
of Manila Market Vendors, Inc. commenced
Civil Case 96787 before the Court of First
Instance of Manila, presided over by
respondent Judge, seeking the declaration of
nullity of Ordinance No. 7522 for the reason
that (a) the publication requirement under the
Revised Charter of the City of Manila has not
been complied with; (b) the Market
Committee was not given any participation in
the enactment of the ordinance, as envisioned
by Republic Act 6039; (c) Section 3 (e) of the
Anti-Graft and Corrupt Practices Act has been
violated; and (d) the ordinance would
violate Presidential
Decree
No.
7 of
September 30, 1972 prescribing the collection
of fees and charges on livestock and animal
products. prLL
Resolving the accompanying prayer for the
issuance of a writ of preliminary injunction,
respondent Judge issued an order on March 1,
1975, denying the plea for failure of the
respondent Federation of Manila Market
Vendors, Inc. to exhaust the administrative
remedies outlined in the Local Tax Code.

After due hearing on the merits, respondent

Judge rendered its decision on August 29,
1975, declaring the nullity of Ordinance No.
7522 of the City of Manila on the primary
ground of non-compliance with the
requirement of publication under the Revised
City Charter. Respondent Judge ruled:
"There is, therefore, no
question that the ordinance in
question was not published at
all in two daily newspapers of
general circulation in the City
of
Manila
before
its
enactment. Neither was it
published in the same manner
after approval, although it
was posted in the legislative
hall and in all city public
markets and city public
libraries. There being no
compliance
with
the
mandatory requirement of
publication before and after
approval, the ordinance in
question is invalid and,
therefore, null and void."
Petitioners moved for reconsideration of the
adverse decision, stressing that (a) only a postpublication is required by the Local Tax Code;
and (b) private respondent failed to exhaust all
administrative remedies before instituting an
action in court.
On September 26, 1975, respondent Judge
denied the motion.

Forthwith, petitioners brought the matter to Us

through the present petition for review on
certiorari.
We find the petition impressed with merits.
1. The nexus of the present controversy is the
apparent conflict between the Revised Charter
of the City of Manila and the Local Tax
Code on the manner of publishing a tax
ordinance enacted by the Municipal Board of
Manila. For, while Section 17 of the Revised
Charter provides:
"Each
proposed
ordinance shall be published
in two daily newspapers of
general circulation in the city,
and shall not be discussed or
enacted by the Board until
after the third day following
such publication. . . . Each
approved ordinance . . . shall
be published in two daily
newspapers
of
general
circulation in the city, within
ten days after its approval;
and shall take effect and be in
force on and after the
twentieth day following its
publication, if no date is fixed
in the ordinance."
Section 43 of the Local Tax Code directs:
"Within ten days after their
approval, certified true copies
of all provincial, city,
municipal
and
barrio ordinances levying or
imposing taxes, fees or other

charges shall be published for

three consecutive days in a
newspaper or publication
widely circulated within the
jurisdiction of the local
government, or posted in the
local legislative hall or
premises and in two other
conspicuous places within the
territorial jurisdiction of the
local government. In either
case, copies of all provincial,
city, municipal and barrio
ordinances shall be furnished
the
treasurers
of
the
respective component and
mother units of a local
government
for
dissemination."
In other words, while the Revised Charter of
the
City
of
Manila
requires
publication before the enactment of the
ordinance and after the approval thereof in
two daily newspapers of general circulation in
the city, the Local Tax Code only prescribes
for publication after the approval of
"ordinances levying or imposing taxes, fees or
other charges" either in a newspaper or
publication widely circulated within the
jurisdiction of the local government or by
posting the ordinance in the local legislative
hall or premises and in two other conspicuous
places within the territorial jurisdiction of the
local government. Petitioners' compliance
with the Local Tax Code rather than with the
Revised Charter of the City spawned this
litigation.

There is no question that the Revised Charter

of the City of Manila is a special act since it
relates only to the City of Manila, whereas
the Local Tax Code is a general law because it
applies universally to all local governments.
Blackstone defines general law as a universal
rule affecting the entire community and
special law as one relating to particular
persons or things of a class. 1 And the rule
commonly said is that a prior special law is
not ordinarily repealed by a subsequent
general law. The fact that one is special and
the other general creates a presumption that
the special is to be considered as remaining an
exception of the general, one as a general law
of the land, the other as the law of a particular
case. 2 However, the rule readily yields to a
situation where the special statute refers to a
subject in general, which the general statute
treats in particular. The exactly is the
circumstance obtaining in the case at bar.
Section 17 of the Revised Charter of the City
of Manila speaks of "ordinance" in general,
i.e., irrespective of the nature and scope
thereof, whereas, Section 43 of the Local Tax
Coderelates to "ordinances levying or
imposing taxes, fees or other charges" in
particular. In regard, therefore, to ordinances
in general, the Revised Charter of the City of
Manila is doubtless dominant, but, that
dominant force loses its continuity when it
approaches the realm of "ordinances levying
or imposing taxes, fees or other charges" in
particular. There, the Local Tax Code controls.
Here, as always, a general provision must give
way to a particular provision. 3 Special
provision governs. 4 This is especially true
where the law containing the particular
provision was enacted later than the one

containing the general provision. The City

Charter of Manila was promulgated on June
18, 1949 as against the Local Tax Code which
was decreed on June 1, 1973. The law-making
power cannot be said to have intended the
establishment of conflicting and hostile
systems upon the same subject, or to leave in
force provisions of a prior law by which the
new will of the legislating power may be
thwarted and overthrown. Such a result would
render legislation a useless and idle ceremony,
and subject the law to the reproach of
uncertainty and unintelligibility. 5
The case of City of Manila v. Teotico 6 is
opposite. In that case, Teotico sued the City of
Manila for damages arising from the injuries
he suffered when he fell inside an uncovered
and unlighted catchbasin or manhole on P.
Burgos Avenue. The City of Manila denied
liability on the basis of the City Charter (R.A.
409) exempting the City of Manila from any
liability for damages or injury to persons or
property arising from the failure of the city
officers to enforce the provisions of the charter
or any other law or ordinance, or from
negligence of the City Mayor, Municipal
Board, or other officers while enforcing or
attempting to enforce the provisions of the
charter or of any other law or ordinance. Upon
the other hand, Article 2189 of the Civil Code
makes cities liable for damages for the death
of, or injury suffered by any persons by reason
of the defective condition of roads, streets,
bridges, public buildings, and other public
works under their control or supervision. On
review, the Court held the Civil Code
controlling. It is true that, insofar as its
territorial application is concerned, the

Revised City Charter is a special law and the

subject matter of the two laws, the Revised
City Charter establishes a general rule of
liability arising from negligence in general,
regardless of the object thereof, whereas the
Civil
Code
constitutes
aparticular
prescription for liability due to defective
streets in particular. In the same manner, the
Revised Charter of the City prescribes a rule
for the publication of "ordinance" in general,
while the Local Tax Code establishes a rule for
the publication of "ordinance levying or
imposing taxes fees or other charges in
particular.
In fact, there is no rule which prohibits the
repeal even by implication of a special or
specific act by a general or broad one. 7 A
charter provision may be impliedly modified
or superseded by a later statute, and where a
statute is controlling, it must be read into the
charter notwithstanding any particular charter
provision. 8 A subsequent general law
similarly applicable to all cities prevails over
any conflicting charter provision, for the
reason that a charter must not be inconsistent
with the general laws and public policy of the
state. 9 A chartered city is not an independent
sovereignty. The state remains supreme in all
matters not purely local. Otherwise stated, a
charter must yield to the constitution and
general laws of the state, it is to have read into
it that general law which governs the
municipal corporation and which the
corporation cannot set aside but to which it
must yield. When a city adopts a charter, it in
effect adopts as part of its charter general law
of such character. 10

2. The
principle
of
exhaustion
of
administrative remedies is strongly asserted by
petitioners as having been violated by private
respondent in bringing a direct suit in court.
This is because Section 47 of the Local Tax
Codeprovides that any question or issue raised
against the legality of any tax ordinance, or
portion thereof, shall be referred for opinion to
the city fiscal in the case of tax ordinance of a
city. The opinion of the city fiscal is
appealable to the Secretary of Justice, whose
decision shall be final and executory unless
contested before a competent court within
thirty (30) days. But, the petition below
plainly shows that the controversy between the
parties is deeply rooted in a pure question of
law: whether it is the Revised Charter of the
City of Manila or the Local Tax Code that
should govern the publication of the tax
ordinance. In other words, the dispute is
sharply focused on the applicability of the
Revised City Charter or the Local Tax
Code on the point at issue, and not on the
legality of the imposition of the tax.
Exhaustion of administrative remedies before
resort to judicial bodies is not an absolute rule.
It admits of exceptions. Where the question
litigated upon is purely a legal one, the rule
does not apply. 11 The principle may also be
disregarded when it does not provide a plain,
speedy and adequate remedy. It may and
should be relaxed when its application may
cause great and irreparable damage. 12
3. It is maintained by private respondent that
the subject ordinance is not a "tax ordinance,"
because the imposition of rentals, permit fees,
tolls and other fees is not strictly a taxing
power but a revenue-raising function, so that

the procedure for publication under the Local

Tax Code finds no application. The pretense
bears its own marks of fallacy. Precisely, the
raising of revenues is the principal object of
taxation. Under Section 5, Article XI of the
New Constitution, "Each local government
unit shall have the power to create its own
sources of revenue and to levy taxes, subject
to such provisions as may be provided by
law." 13 And one of those sources of revenue
is what the Local Tax Code points to in
particular: "Local governments may collect
fees or rentals for the occupancy or use of
public markets and premises . . ." 14 They can
provide for and regulate market stands, stalls
and privileges, and, also, the sale, lease or
occupancy thereof. They can license, or permit
the use of, lease, sell or otherwise dispose of
stands, stalls or marketing privileges. 15
It is a feeble attempt to argue that the
ordinance violates Presidential Decree No. 7,
dated September 30, 1972, insofar as it affects
livestock and animal products, because the
said decree prescribes the collection of other
fees and charges thereon "with the exception
of ante-mortem and post-mortem inspection
fees, as well as the delivery, stockyard and
slaughter fees as may be authorized by the
Secretary of Agriculture and Natural
Resources." 16Clearly, even the exception
clause of the decree itself permits the
collection of the proper fees for livestock. And
the Local Tax Code (P.D. 231, July 1, 1973)
authorizes in its Section 31: "Local
governments may collect fees for the slaughter
of animals and the use of corrals . . ."
4. The non-participation of the Market
Committee in the enactment of Ordinance No.

7522 supposedly in accordance with Republic

Act No. 6039, an amendment to the City
Charter of Manila, providing that "the market
committee shall formulate, recommend and
adopt, subject to the ratification of the
municipal board, and approval of the mayor,
policies and rules or regulation repealing or
maneding existing provisions of the market
code" does not infect the ordinance with any
germ of invalidity. 17 The function of the
committee is purely recommendatory as the
underscored
phrase
suggests,
its
recommendation is without binding effect on
the Municipal Board and the City Mayor. Its
prior acquiescence of an intended or proposed
city ordinance is not a condition sine qua
non before the Municipal Board could enact
such ordinance. The native power of the
Municipal Board to legislate remains
undisturbed even in the slightest degree. It can
move in its own initiative and the Market
Committee cannot demur. At most, the Market
Committee may serve as a legislative aide of
the Municipal Board in the enactment of city
ordinances affecting the city markets or, in
plain words, in the gathering of the necessary
data, studies and the collection of consensus
for the proposal of ordinances regarding city
markets. Much less could it be said
that Republic Act 6039 intended to delegate to
the Market Committee the adoption of
regulatory measures for the operation and
administration of the city markets. Potestas
delegata non delegare potest.
5. Private respondent bewails that the market
stall fees imposed in the disputed ordinance
are diverted to the exclusive private use of the
Asiatic Integrated Corporation since the

collection of said fees had been let by the City

of Manila to the said corporation in a
"Management and Operating Contract." The
assumption is of course saddled on erroneous
premise. The fees collected do not go direct to
the private coffers of the corporation.
Ordinance No. 7522 was not made for the
corporation but for the purpose of raising
revenues for the city. That is the object it
serves. The entrusting of the collection of the
fees does not destroy the public purpose of the
ordinance. So long as the purpose is public, it
does not matter whether the agency through
which the money is dispensed is public or
private. The right to tax depends upon the
ultimate use, purpose and object for which the
fund is raised. It is not dependent on the nature
or character of the person or corporation
whose intermediate agency is to be used in
applying it. The people may be taxed for a
public purpose, although it be under the
direction of an individual or private
corporation. 18
Nor can the ordinance be stricken down as
violative of Section 3(e) of the Anti-Graft and
Corrupt Practices Act because the increased
rates of market stall fees as levied by the
ordinance will necessarily inure to the
unwarranted benefit and advantage of the
corporation. 19 We are concerned only with
the issue whether the ordinance in question is
intra vires. Once determined in the
affirmative, the measure may not be
invalidated because of consequences that may
arise from its enforcement. 20
ACCORDINGLY, the decision of the court
below is hereby reversed and set aside.
Ordinance No. 7522 of the City of Manila,

dated June 15, 1975, is hereby held to have

been validly enacted. No. costs.
SO ORDERED.
||| (Bagatsing v. Ramirez, G.R. No. L-41631,
[December 17, 1976], 165 PHIL 909-920)
[G.R. Nos. L-32979-81. February 29, 1972.]
NAPOLEON
LECHOCO, petitioner, vs. CIVIL
AERONAUTICS
BOARD,
PHILIPPINE AIR LINES, INC.,
FILIPINAS ORIENT AIRWAYS,
INC.,
AND
AIR
MANILA,
INC., respondents.
SYLLABUS
1. MERCANTILE
LAW;
TRANSPORTATION;
AIR
CARRIERS; REPUBLIC ACT 2677 DOES
NOT REPEAL REPUBLIC ACT 776.
There is nothing in Republic Act 2677, which
amended various sections of Commonwealth
Act 146, the basic Public Service Act, that
expressly repeals Republic Act 776. While
section 3 of Republic Act 2677 provides that
"All Acts or parts of Acts inconsistent with the
provisions of this Act are hereby repealed,"
the fact is that the derogation was thereby
made dependent upon actual inconsistency
with previous laws. This is the very
foundation of implied repeal. However, there
is nothing in Act 2677 that evidences an intent
on the part of the Legislature to set aside the
carefully detailed regulation of civil air
transport set forth in Act 776. Said act in itself

constitutes a recognition of the need of

entrusting regulation, supervision and control
of civil aviation to a specialized body.
2. ID.; ID.; ID.; ID.; NO INCONSISTENCY
BETWEEN PUBLIC SERVICE ACT, AS
AMENDED, AND SECTION 10 (c) (2)
OF REPUBLIC ACT 776; POWER TO FIX
RATES BOTH VESTED IN CIVIL
AERONAUTICS BOARD AND PUBLIC
SERVICE COMMISSION. There is no
irreconcilable inconsistency between section
14 of the Public Service Act, as amended
by Republic Act 2677, and section 10 (c) (2)
of the prior Republic Act 776, except for the
fact that power over rates to be charged by air
carriers of passengers and freight are vested in
different entities, the CAB and the PSC. Even
that will result in no more than a concurrent
jurisdiction in both supervisory entities, and
not in the divesting of the power of one in
favor of the other.
3. ID.; ID.; ID.; ID.; EXPLANATORY NOTE
TO BILL WHICH BECAME REPUBLIC
ACT 2677 SHOWS ABSENCE OF INTENT
TO REPEAL REPUBLIC ACT 776. The
absence of intent to repeal Republic Act
776 by the enactment of Act 2677 is also
evidenced by the explanatory note to House
Bill 4030 (that later became Act 2677). It
expressly stated the desire to broaden the
jurisdiction of the PSC "by vesting it with the
power to supervise and control maritime
transportation . . . except air transcription and
warehouses which are now subject to
regulation and supervision by the Civil
Aeronautics Board and the Bureau of
Commerce respectively."

4. ID.; ID; ID; ID.; LEGISLATION

SUBSEQUENT
TO REPUBLIC
ACT
2677 SHOWS LEGISLATIVE INTENT TO
MAINTAIN JURISDICTION AND POWERS
OF CAB. The same legislative intent to
maintain the jurisdiction and powers of the
CAB appears from a consideration of the
legislation subsequent to the enactment
of Republic Act 2677. Thus, Republic Act
4147, enacted 20 June 1964 (granting air
transportation franchise to Filipinas Orient
Airways), andRepublic Act 4501, passed in 19
June 1965 (granting a similar franchise to Air
Manila, Inc.), both uniformly require that the
franchise grantee "shall fix just and
reasonable and uniform rates for the
transportation of passengers and freight,
subject to the regulations and approval of the
Civil Aeronautics Board, or such other
regulatory agencies as the Government may
designate for this purpose." Such reference to
the Civil Aeronautics Board after the
enactment of Republic Act 2677 would be
difficult to explain if said law had already
repealed the power of the CAB over air fares
or rates, as contended by petitioner Lechoco.
5. ID.; ID.; ID.; ID.; IMPLIED REPEALS
NOT FAVORED; SECTION 14 OF PUBLIC
SERVICE ACT, AS AMENDED, AND
SECTION 10 (C) (2) OF REPUBLIC ACT
776, RECONCILED. The well established
principle is that implied repeals are not
favored and consequently statutes must be so
construed as to harmonize all apparent
conflicts and give effect to all the provisions
whenever possible. This rule makes it
imperative to reconcile both section 14 of
thePublic Service Act, as amended

by Republic Act 2677, and section 10 (c) (2)

of Republic Act 776, by recognizing the power
of the Civil Aeronautics Board "to fix and
determine reasonable individual, joint or
special rates, charges of fares" for air carriers
(under Republic Act 776) but subject to the
"maximum rates on freights and passengers"
that may be set up by the Public Service
Commission (as per Republic Act 2677); so
that rates, charges or fares allowed or fixed by
CAB may in no case exceed the maxima
prescribed now or to be prescribed in the
future by the PSC.
6. ID.; CIVIL AERONAUTICS BOARD;
JURISDICTION TO FIX AIR CARRIERS'
FARES; NO SHOWING THAT PSC FIXED
ANY MAXIMUM RATES THEREFOR;
INSTANT CASE. The questioned orders of
the Civil Aeronautics Board, asserting its
jurisdiction to fix the reasonable fares that air
carriers may demand, are in accord with law,
there being no showing that the Public Service
Commission has fixed any maximum rates
therefor.
7. ID.; ID.; ID.; COURT MUST FOLLOW
EXPRESS TERMS OF THE LAW.
However plausible the suggestion of the
respondents should be that the retention
in Republic Act 2677 of the power of the PSC
to fix maximum rates on air freight and
passenger was the result of legislative
inadvertence, considering that in House Bill
No. 4030 the phrase conferring such power on
the PSC appear in brackets, indicating that
said passage is to be eliminated, this Court is
powerless to ignore the express grant of the
authority in question in the wording
of Republic Act 2677 as finally approved. The

elimination of the words "except as regards

the fixing of their maximum rates on freight
and passengers" from section 14 (c) of
the Public Service Act, as amended
by Republic Act 2677, in order to avoid
conflict with Republic Act 776, and to unify
jurisdiction and control over civil aviation in
the Philippines can be obtained from the
Legislature itself.

DECISION

REYES, J.B.L., J p:
Original petition for certiorari with
preliminary injunction to annul and set aside
Civil Aeronautics Board resolutions Nos. 166
(70), 321(70) and 330 (70), fixing temporary
and permanent rate or fare adjustments of
three domestic air carriers, Philippine Air
Lines (PAL), Filipinas Orient Airways (FOA)
and Air Manila, and dismissing petitioner's
objections thereto, based on alleged lack of
jurisdiction.
The issue submitted for Our decision is
whether authority to fix air carrier's rates is
vested in the Civil Aeronautics Board (CAB)
or in the Public Service Commission (PSC).
Petitioner Lechoco contends that by the
enactment of Republic Act No. 2677 (on 18
June 1960) amending sections 13(a) and 14 of
Commonwealth Act No. 146 (the original PSC
Act), jurisdiction to control rates of airships
was taken away from the Civil Aeronautics
Board and revested in the PSC, since Republic

Act 2671 impliedly repealed section 10 (c) (2)

of Republic Act No. 776, passed on 20 June
1952, conferring control over air rates and
fares on the CAB.
Respondents aver, on the other hand, that, at
the very least, jurisdiction over air fares and
rates was, under both statutes, exercisable
concurrently by the CAB and the PSC, and
that following the rule on concurrent
jurisdictions of judicial bodies, the first to
exercise or take jurisdiction (CAB in this case)
should retain it to the exclusion of the other
body.
In resolving the issue posed, it is apposite to
review the various laws enacted on the matter.
In 1932, the Philippine (pre Commonwealth)
Legislature provided by Public Law No. 3996,
in its section 15, that any
"Person
or
persons engaged in air
commerce shall submit
for approval to the
Public
Service
Commission or its
authorized
representative uniform
charges applied to
merchandise
and
passengers
per
kilometer
or
over
specified distances. . ."
In consonance with said law, the legislative
franchise granted in November of 1935 to the
Philippine Aerial Taxi Company, Inc. (Act No.
4271) specified that (section 3)

"The
grantee
shall
fix
just,
reasonable and uniform
rates
for
the
transportation
of
passengers and freight,
subject
to
the
supervision
and
approval of the Public
Service
Commission. . ."
The following year the PSC was reorganized
by Commonwealth Act No. 146, enacted 7
November 1936. Section 13 thereof granted
PSC "general supervision and regulation of,
jurisdiction and control over, all public
services . . ." except as otherwise provided.
The same section, however, contained the
following reservation:
". . . Provided
further, That
the
Commission shall not
exercise any control or
supervision
over
aircraft
in
the
Philippines, except with
regard to the fixing of
maximum
passenger
and freight rates . . ."
In the aftermath of World War II the
Legislature of the independent Republic of the
Philippines passed Republic Act No. 51, on 4
October 1946, authorizing the Chief Executive
to reorganize within one year the different
executive departments, bureaus, offices,
agencies and other instrumentalities of the
government, including corporations owned or

controlled by it. In the exercise of the broad

powers thus conferred, the President of the
Philippines, by Executive Order No. 94, of 4
October 1947, in its section 149, abolished the
Civil Aeronautics Commission and transferred
its functions and duties to the Civil
Aeronautics Board created by said Order No.
94, with the following provision:
"The . . .
functions provided in
section
13
of
Commonwealth Act
No. 146, pertaining to
the power of the Public
Service Commission to
fix
the
maximum
passenger and freight
rates that may be
charged by airlines . . .
are hereby transferred
to and consolidated in
the Civil Aeronautics
Administration and/or
Civil
Aeronautics
Board."
The foregoing transfer of functions was
virtually ratified by Republic Act No. 776,
effective on 20 June 1952, entitled "An Act to
Reorganize the Civil Aeronautics Board and
the Civil Aeronautics Administration, to
provide for the regulation of civil aeronautics
in the Philippines . . ." that delimited the
powers of the Board. Section 10 of Act 776
prescribed, inter alia, the following:

"SEC.
10. Powers and duties
of the Board. (A)
Except as otherwise
provided herein, the
Board shall have the
power to regulate the
economic aspect of air
transportation, and shall
have
the
general
supervision
and
regulation
of,
and
jurisdiction and control
over, air carriers as well
as
their
property,
property
rights,
equipment,
facilities,
and franchise, in so far
as may be necessary for
the purpose of carrying
out the provisions of
this Act.
xxx xxx xxx
'(C) The
Board shall have
the
following
specific
powers and duties:
'(2) To fix and
determine reasonable
individual, joint, or
special rates, charges or
fares which an air
carrier
may
demand, collect
or
receive for any service
in connection with air
commerce. The Board

may adopt any original,

amended,
or
new
individual, joint or
special rates, charges or
fares proposed by an
air
carrier if
the
proposed
individual,
joint, or special rates,
charges or fares are not
unduly preferential or
unduly discriminatory
or unreasonable. The
burden of proof to show
that
the
proposed
individual, joint or
special rates, charges or
fares are just and
reasonable shall be
upon the air carrier
proposing the same.'"
Latest enactment of the series was Republic
Act No. 2677, in effect on 18 June 1960, that
amended
various
sections
of
Commonwealth Act No. 146, the basic Public
Service Act. Among those amended was
section 14, which was made to read:
"Sec. 14. The
following are exempted
from the provisions of
the preceding section: 1
xxx xxx xxx
"(c) Airships
within
the
Philippines except as
regards the fixing of
their maximum rates or

freight
and
passengers." (Italics
supplied)
Contrary to the views of petitioner Lechoco,
there is nothing in Republic Act 2677 that
expressly repeals Republic Act No. 776. While
section 3 of Republic Act 2677 provides that
"All Acts or parts of Acts inconsistent with the
provisions of this Act are hereby repealed", the
fact is that the derogation was thereby made
dependent upon actual inconsistency with
previous laws. This is the very foundation of
the rule of implied repeal. However, there is
nothing in Act 2677 that evidences an intent
on the part of the Legislature to set aside the
carefully detailed regulation of civil air
transport as set forth in Act 776. Said Act in
itself constitutes a recognition of the need of
entrusting regulation, supervision and control
of civil aviation to a specialized body.
We find no irreconcilable inconsistency
between section 14 of the Public Service Act,
as amended by Republic Act 2677, and section
10 (c) (2) of the prior Republic Act 776, above
quoted, except for the fact that power over
rates to be charged by air carriers on
passengers and freight are vested in different
entities, the CAB and the PSC. Even that will
result in no more than a concurrent jurisdiction
in both supervisory entities, and not in the
divesting of the power of one in favor of the
other.
The absence of intent to repeal Republic Act
No. 776 by the enactment of Act 2677 is also
evidenced by the explanatory note to House
Bill 4030 (that later became Act 2677). It
expressly stated the desire to broaden the

jurisdiction of the PSC "by vesting it with the

power to supervise and control maritime
transportation . . . except air transportion and
warehouses which are now subject to
regulation and supervision by the Civil
Aeronautics Board and the Bureau of
Commerce respectively." 2
The same legislative intent to maintain the
jurisdiction and powers of the CAB appears
from a consideration of the legislation
subsequent to the enactment of Republic Act
2677. Thus, Republic Act No. 4147, enacted
20 June 1964 (granting an air transportation
franchise to Filipinas Orient Airways),
and Republic Act No. 4501, passed in 19 June
1965 (granting a similar franchise to Air
Manila, Inc.), both uniformly require (in their
section 3) that the franchise grantee
"shall fix just
and reasonable and
uniform rates for the
transportation
of
passengers
and
freight, subject to the
regulations
and
approval of the Civil
Aeronautics Board or
such other regulatory
agencies
as
the
Government
may
designate
for
this
purpose."
(Italics
supplied)
Such references to the Civil Aeronautics
Board after the enactment of Republic Act No.
2677 would be difficult to explain if said law
had already repealed the power of the CAB

over fares or rates, as contended by petitioner

Lechoco.
Be that as it may, the well-established
principle is that implied repeals are not
favored and consequently statutes must be so
construed as to harmonize all apparent
conflicts and give effect to all the provisions
whenever possible. 3 This rule makes it
imperative to reconcile both section 14 of
the Public
Service
Act as
amended
by Republic Act No. 2677, and section 10 (c)
(2) of Republic Act No. 776, by recognizing
the power of the Civil Aeronautics Board to
"fix and determine reasonable individual, joint
or special rates, charges or fares" for air
carriers (under Republic Act 776) but subject
to the "maximum rates on freights and
passengers" that may be set by the Public
Service Commission (as per Republic Act
2677); so that the rates, charges or fares
allowed or fixed by CAB may in no case
exceed the maxima prescribed now or to be
prescribed in the future by the PSC.
The respondents have suggested that the
retention in Republic Act 2677 of the power of
the PSC to fix maximum rates on air freight
and passengers was the result of legislative
inadvertence, considering that in House Bill
No. 4030 the phrase conferring such power on
the PSC appeared in brackets, indicating that
said passage was to be eliminated. But
however plausible the suggestion should be,
this Court is powerless to ignore the express
grant of the authority in question in the
wording of Republic Act 2677 as finally
approved. The elimination of the words
"except as regards the fixing of their
maximum rates on freight and passengers"

from section 14(c) of thePublic Service Act, as

amended by Republic Act 2677, in order to
avoid conflict with Republic Act 776, and to
unify jurisdiction and control over civil
aviation in the Philippines, can only be
obtained from the Legislature itself.
PREMISES CONSIDERED, the questioned
order of the Civil Aeronautics Board, asserting
its jurisdiction to fix the reasonable fares that
air carriers may demand, are in accord with
law, there being no showing that the Public
Service Commission has fixed any maximum
rates therefor.
WHEREFORE, the writ of certiorari with
preliminary injunction applied for is hereby
denied. Costs against petitioner Napoleon
Lechoco.
||| (Lechoco v. Civil Aeronautics Board, G.R.
Nos. L-32979-81, [February 29, 1972], 150
PHIL 769-778)
[G.R. No. L-7899. June 23, 1955.]
ALFREDO
MONTELIBANO,
PASTOR
MALLORCA,
GONZALGO DE LA TORRE, and
JOSE
ARTICULO, petitionersappellants, vs. THE HONORABLE
FELIX S. FERRER, as Judge of the
Municipal Court of Bacolod, and
JOSE F. BENARES, respondentsappellees.
SYLLABUS

1. CRIMINAL
PROCEDURE;
WHO MAY INITIATE CRIMINAL
CASES. Since the only officer
authorized by the Charter of the City of
Bacolod to initiate criminal cases in the
courts thereof is its City Attorney, the
Municipal Court may not entertain a
complaint filed directly with it by the
offended party.
2. STATUTORY
CONSTRUCTION; INTERPRETATION
OF REENACTED STATUTES.
Considering that the Charter of the City of
Bacolod merely incorporates therein the
pertinent provisions of the Charter of the
City of Manila, it may be presumed that
the Legislature intended to adopt also the
settled interpretation already given to the
latter by the judicial department.

DECISION

CONCEPCION, J p:
The question involved in this case
is one purely of law.
On June 13, 1953, respondent Jose
F. Benares filed, with the Municipal Court
of the City of Bacolod, a criminal
complaint, which was docketed as Case
No. 2864 of said court, against petitioners
herein, Alfredo Montelibano, Pastor
Mallorca, Gonzalgo de la Torre and Jose
Articulo, charging them with the crime of

malicious mischief. It is alleged in said

complaint:
"That on or about the
5th, the 7th and the 8th of
June, 1953, in the City of
Bacolod, Philippines, and
within the jurisdiction of this
court, Alfredo Montelibano,
as author by inducement,
Pastor Mallorca, Gonzalgo de
la Torre and Jose Articulo, as
authors
by
direct
participations, conspiring and
confederating together and
helping one another, did then
and
there,
wilfully,
unlawfully and deliberately
cause
damage
to
the
sugarcane
plantation
belonging to Jose F. Benares,
the offended party herein,
intentionally
and
using
bulldozer and destroying
completely eighteen (18)
hectares
of
sugarcanes
obviously under the impulse
of hatred and a desire for
revenge, as the accused,
Alfredo Montelibano, failed
in his attempt to have the
herein
offended
party
punished for contempt of
Court in Civil Case No. 1896
of the Court of First Instance
of
Negros
Occidental,
thereby causing upon said
Jose F. Benares damage in the

amount of
P13,000.00."

more

than

Upon the filing of this complaint,

due course was given thereto by the herein
respondent, Hon. Felix S. Ferrer,
Municipal Judge of the City of Bacolod,
who, likewise, issued the corresponding
warrant of arrest. On or about June 22,
1953, the aforementioned defendants
(petitioners herein) filed a motion to quash
said warrant of arrest, as well as the
complaint, upon several grounds, which
may be reduced to two, namely: (1) The
only officer authorized by the Charter of
the City of Bacolod to initiate criminal
cases in the courts thereof is its City
Attorney, who is opposed to the institution
of said Case No. 2864; and (2) Said case
involves a prejudicial question.
In this connection, petitioners
alleged, and Benares has not denied, the
following: Sometime in 1940, the Capitol
Subdivision Inc. (hereinafter referred to as
the Subdivision), of which petitioner
Alfredo Montelibano is the president and
general manager, leased Lot No. 1205-I-1
(which is the same property involved in
Case No. 2864) to Benares, for a period of
five (5) crop years, ending in the crop-year
1944-1945, with an option in favor of
Benares, of another five (5) crop years. On
June 5, 1951, the Subdivision instituted
against Benares, unlawful detainer case
No. 1896 of the Municipal Court of the
City of Bacolod, which, in due course,
subsequently, rendered a decision ordering
his ejectment from said lot. Benares
appealed to the Court of First Instance of

Negros Occidental (in which it was

docketed as Civil Case No. 1896). On
motion of the Subdivision, this court
issued a writ of preliminary mandatory
injunction, commanding Benares to turn
over the aforementioned lot to the
Subdivision, which filed a bond
undertaking to pay to Benares "all
damages which he may sustain" by reason
of the issuance of said writ, "if the court
should finally decide that the plaintiff was
not entitled thereto." Inasmuch as Benares
continued planting on Lot No. 1205-L-1,
instead of delivering it to the Subdivision,
the latter filed a petition praying that the
former be declared in contempt of court.
This petition was denied, by an order dated
April 30, 1953, which, however, required
Benares to "immediately and promptly
obey the order of preliminary mandatory
injunction." On June 5, 1953, the
provincial sheriff delivered the land in
question to the Subdivision. Seemingly,
acting upon instructions of petitioner
Montelibano, his co-petitioners thereupon
cleared the land of the sugarcane planted
therein by Benares. Hence, the criminal
complaint filed by the latter.
The Municipal Court denied the
aforementioned motion to quash said
complaint and the warrant of arrest, as
well as a subsequent motion for
reconsideration, whereupon petitioners
instituted the case at bar, in the Court of
First Instance of Negros Occidental, where
it was docketed as Civil Case No. 2828,
against said Municipal Judge, and
complainant Benares, for the purpose of

securing a writ of certiorari and mandamus

"annulling and vacating all the
proceedings so far taken by respondent
Judge in said Case No. 2864" and "holding
that said Judge had no jurisdiction to take
cognizance of the same" and "dismissing
said case" with a writ of preliminary
injunction, enjoining respondent judge "to
desist from further proceedings in the
case." The writ of preliminary injunction
was issued by said court of first instance,
which, in due course, eventually rendered
a decision, dismissing the petition for
certiorari and mandamus, and dissolving
the writ of preliminary injunction, with
costs against the petitioners. The case is
now before us on appeal taken, from said
decision,
by
the
aforementioned
petitioners, the defendants in said criminal
case.
It is not disputed that the complaint
in question was filed by Benares directly
with the municipal court of Bacolod, and
that the City Attorney had, not only no
intervention whatsoever therein, but, also,
expressed, in open court, his opposition
thereto. The issue boils down to whether
said municipal court may entertain said
complaint. Petitioners contend that it may
not, relying upon section 22 of
Commonwealth Act No. 326, otherwise
known as the Charter of the City of
Bacolod, the pertinent part of which
provides:
". . . The City attorney
. . . shall also have charge of
the prosecution of all crimes,
misdemeanors, and violations

of city ordinances, in the

court of First Instance and the
Municipal Court of the city,
and shall discharge all the
duties in respect to criminal
prosecutions enjoined by law
upon provincial fiscals.
"The city attorney
shall cause to be investigated
all charges of crimes,
misdemeanors, and violation
of ordinances, and have the
necessary informations or
complaints prepared or made
against the persons accused . .
."
Upon the other hand, respondents
argue that this provision is merely
declaratory of the powers of the City
Attorney of Bacolod and does not preclude
the application of Sec. 2 of Rule 106 of the
Rules of Court reading:
"Complaint is a sworn
written statement charging a
person with an offense,
subscribed by the offended
party, any peace officer or
other employees of the
government or governmental
institution in charge of the
enforcement or execution of
the law violated."
This was the very same provision
invoked by the petitioner in the case of
Espiritu vs. Dela Rosa (45 Off. Gaz. 196),
in which this Court refused to issue a writ
of mandamus to compel the Court of First

Instance of Manila to accept a complaint

filed, directly with said court, by the
offended party in a given case, without the
intervention of the City Fiscal of Manila.
In his concurring opinion therein, then
Chief Justice Moran had the following to
say:
"I concur upon the
ground that Rule 108 section
4 does not apply in the City
of Manila where the only
officer authorized by law to
conduct
preliminary
investigation is the City
Fiscal (sec. 2474, Adm.
Code) and therefore, all
criminal complaints should
be filed with that officer who
in
turn
may,
after
investigation,
file
the
corresponding
information
with the Court of First
Instance. The provisions of
the Administrative Code on
this matter have not been
repealed by the Rules of
Court. (Hashim vs. Boncan,
40 Off. Gaz., p. 13.)" (Italics
supplied.)
As indicated in said decision, the
same was based, partly, upon the rule laid
down in Hashim vs. Boncan (71 Phil. 216),
which, in turn, was predicated upon earlier
precedents (U. S. vs. Wilson, 4 Phil. 317;
U. S. vs.McGovern, 6 Phil. 621; U.
S. vs. Ocampo, 18 Phil. 1; U. S. vs. Grant
and Kennedy, 18 Phil. 122; U.
S. vs. Carlos, 21 Phil. 553).

In case of Sayo vs. Chief of Police

(45 Off. Gaz. 4875) the language used by
this Court was:
"Under the law, a
complaint charging a person
with the commission of an
offense cognizable by the
courts of Manila is not filed
with the municipal court of
First
Instance
of
Manila, because as above
stated, the latter do not make
or conduct a preliminary
investigation
proper. The
complaint must be made or
filed with the city fiscal of
Manila who, personally or
through one of his assistance,
makes the investigation, not
for the purpose of ordering
the arrest of the accused, but
of filing with the proper court
the necessary information
against the accused if the
result of the investigation so
warrants, and obtaining from
the court a warrant of arrest
or commitment of the
accused.
xxx xxx xxx
"In the City of
Manila, where complaints are
not filed directly with the
municipal court or the Court
of First Instance, the officer
or person making the arrest
without
warrant
shall
surrender or take the person

arrested to the city fiscal, and

the latter shall make the
investigation
above
mentioned and file, if proper,
the
corresponding
information without the time
prescribed by section 125 of
the Revised Penal Code, so
that the court may issue a
warrant of commitment for
the temporary detention of
the accused . . ." (Italics
supplied.)
It is clear, therefore, that, in the
City of Manila, criminal complaints may
be filed only with the City Fiscal, who is
thereby given, by implication, the
exclusive authority to institute criminal
cases in the different courts of said city,
under the provisions of its Charter,
originally found in Section 39 of Act No.
183, the pertinent part of which we quote:
". . . The prosecuting
attorney of the city of Manila
shall have charge of the
prosecution of all crimes,
misdemeanors, and violations
of city ordinances, in the
Court of First Instance and
the municipal courts of the
city of Manila. He shall
investigate all charges of
crimes, misdemeanors, and
violations of ordinances, and
prepare
the
necessary
informations or make the
necessary complaints against

the persons accused, and

discharge all other duties in
respect
to
criminal
prosecutions enjoined upon
provincial fiscals . . ."
This
provision
was mutatis
mutandis reproduced, firstly, in section
2437 of the Old Administrative Code (Act
No. 2657), then in section 2465 of the
Revised Administrative Code, and lastly in
section 38 of Republic Act No. 409. We do
not see, and respondents herein have not
pointed out, any reason why the above
quoted provision of the Charter of the City
of Bacolod, should be interpreted
differently from said sections of the
Charter of the City of Manila, which are
substantially identical thereto. On the
contrary, considering that said provisions
of the Charter of the City of Manila had
been consistently construed in the manner
above indicated, before being incorporated
in the Charter of the City of Bacolod, the
conclusion is inevitable that the framers of
the latter had reproduced the former with
intent of adopting, also its settled
interpretation by the judicial department
(In reDick, 38 Phil. 41, 77).
"In the interpretation
of reenacted statutes the court
will follow the construction
which they received when
previously in force. The
legislature will be presumed
to know the effect which such
status originally had, and by
reenactment to intend that
they should again have the

same effect . . . It is not

necessary that a statute
should be reenacted in
identical words in order that
the rule may apply. It is
sufficient if it is reenacted in
substantially the same words .
. . The rule has been held to
apply to the reenactment of a
statute which received a
practical construction on the
part of those who are called
upon to execute it. The
Supreme Court of Nebraska
says: 'Where the legislature in
framing an act resorts to
language similar in its import
to the language of other acts
which have received a
practical construction by the
executive departments and by
the legislature itself, it is fair
to presume that the language
was used in the later act with
a view to the construction so
given the earlier.' . . ."
(Sutherland
Statutory
Construction, Vol. II, 2d. ed.,
section 403).
". . . two statutes with
a parallel scope, purpose and
terminology should, each in
its own field, have a like
interpretation,
unless
in
particular instances there is
something peculiar in the
question under consideration,
or dissimilar in the terms of

the act relating thereto,

requiring
a
different
conclusion." (50 Am. Jur.
343).
". . . Since it may be
presumed that the legislature
knew a construction, long
acquieced in, which had been
given by the courts to a
statute re-enacted by the
legislature,
there
is
a
presumption of an intention
to adopt the construction as
well as the language of the
prior enactment. It is
accordingly a settled rule of
statutory construction that
when a statute or a clause or
provision thereof has been
construed by a court of last
resort, and the same is
substantially reenacted, the
legislature may be regarded
as
adopting
such
construction." (50 Am. Jur.
461).
In view of the foregoing, the
decision appealed from must be, as it is
hereby, reversed and another one shall be
entered annulling the warrant of arrest
issued by respondent Judge and enjoining
the latter to refrain from entertaining the
complaint aforementioned and to dismiss
the same. With cost against respondent
Jose F. Benares. It is so ordered.
Bengzon, Padilla, Montemayor,
Reyes, A., Jugo, Bautista Angelo,
Labrador and Reyes, J.B.L., JJ., concur.

||| (Montelibano v. Ferrer, G.R. No. L-7899,

[June 23, 1955], 97 PHIL 228-235)
[G.R. No. 72138. January 22, 1990.]
SPS. FELICIDAD M. ALVENDIA and
JESUS
F.
ALVENDIA, petitioners, vs. HON.
INTERMEDIATE APPELLATE COURT,
HON. ELSIE LIGOT-TELAN in her
capacity as Presiding Judge of the
Regional Trial Court of Bulacan, Third
Judicial Region, Branch VIII, the
PROVINCIAL SHERIFF OF BULACAN,
and BONIFACIO BONAMY, respondents.
[G.R. No. 72373. January 22, 1990.]
BONIFACIO
BONAMY, petitioner, vs. HON.
EDGARDO L. PARAS, in his capacity as
Associate
Appellate
Justice
and
Chairman,
HON.
VICENTE
V.
MENDOZA, in his capacity as Associate
Appellate Justice and Member, and HON.
LUIS A. JAVELLANA, in his capacity as
Associate Appellate Justice and Member
of the Fourth Special Cases Division of
the Intermediate Appellate Court;
FELICIDAD M. ALVENDIA and JESUS
F. ALVENDIA, respondents.
SYLLABUS

1. REMEDIAL LAW; DOCTRINE OF

FINALITY OF JUDGMENT; GROUNDED
ON PUBLIC POLICY. It is axiomatic that
there is no justification in law and in fact for
the reopening of a case which has long
become final and which has in fact been
executed. Time and again this Court has said
that the doctrine of finality of judgments is
grounded on fundamental consideration of
public policy and sound practice that at the
risk of occasional error the judgments of
courts must become final at some definite date
fixed by law.
2. ID.; ID.; APPELLEE'S BRIEF; APPELLEE
MAY ASSIGN ERROR TO MAINTAIN
JUDGMENT ON OTHER GROUNDS.
There appears to be no cogent reason to
disturb the findings and conclusions of the
Intermediate Appellate Court in its decision of
February 27, 1985 which has become final and
executory when the Alvendias failed to file
their contemplated petition for review on
certiorari in G.R. No. 72138. It has been held
that failure to perfect an appeal renders the
lower court's judgment final and executory
and a modification of such judgment by the
appellate
court
cannot
be
allowed.
Furthermore, an appellee who is not also an
appellant may also assign errors in his brief
where his purpose is to maintain the judgment
on other grounds, but he may not do so if his
purpose is to have the judgment modified or
reversed, for, in such case, he must appeal.
3. ID.; SPECIAL SHERIFFS: UNDER THE
GENERAL SUPERVISORY CONTROL OF
THE
COURT
THAT
RENDERED
JUDGMENT. On the other hand, the
Alvendias invoke equity and aver that the IAC

acted correctly in granting their motion to pay

the balance of the judgment indebtedness in
view of highly exceptional circumstances such
as the supposedly grossly fraudulent
irregularities committed by Bonamy and the
Special Sheriff of Bulacan. It is a settled rule,
that said Special Sheriff is under the control
and supervision of the trial court which issued
the assailed writ of execution to the exclusion
of other courts. Accordingly, the court which
rendered the judgment has a general
supervisory control over its process of
execution and this power carries with it the
right to determine every question of fact and
law which may be involved in the execution.
(Vda. de Paman v. Seneris, 115 SCRA 709
[1982]; Paper Industries Corporation of the
Philippines v. Intermediate Appellate Court,
151 SCRA 162 [1987]).
4. ID.; COURTS EXERCISING EQUITY
ARE BOUND BY RULES OF LAW AND
PUBLIC POLICY. Equity has been aptly
described as "a justice outside legality"; which
is applied only in the absence of and never
against statutory law or as in this case, judicial
rules of procedure. The rule is "equity follows
the law" but where a particular remedy is
given by the law and that remedy is bounded
and circumscribed by particular rules, it would
be very improper, for the court to take it up
where the law leaves it and to extend it further
than the law allows. There may be a moral
obligation but if there is no enforceable legal
duty, the action for reconveyance must fail.
Courts exercising equity jurisdiction are bound
by rules of law and have no arbitrary
discretion to disregard them. Equitable reasons

will not control against any well-settled rule of

law or public policy.

DECISION

FERNAN, C.J p:
In G.R. No. 72138, the spouses Felicidad M.
Alvendia and Jesus F. Alvendia filed an urgent
motion for extension of time to file an appeal
by certiorari from the denial of their motion
for reconsideration of the decision of the then
Intermediate
Appellate
Court
(IAC)
dismissing their petition docketed therein as
AC-G.R. No. SP-04423, entitled "Alvendia, et
al. v. Telan, etc., et al."
In G.R. No. 72373, a petition for certiorari and
prohibition was filed by Bonifacio Bonamy,
seeking to annul and set aside: [a] Resolution
II dated September 11, 1985 granting the
motion filed by the spouses Alvendia to pay
Bonifacio Bonamy the amount of the
judgment in cash, and [b] Resolution I dated
October 8, 1985 denying Bonamy's motion for
reconsideration of the aforesaid resolution
both issued by the Fourth Special Cases
Division in said AC-G.R. No. SP-04423.
Although no appeal was ever filed in G.R.
No. 72138, the same was ordered consolidated
with G.R. No. 72373 in the resolution of
February 3, 1986 of the First Division of this
Court.
The instant petitions trace their genesis to a
simple collection suit, Civil Case No. 5182-

M 1 filed on September 12, 1977, by

Bonifacio Bonamy against the spouses Jesus
F. Alvendia and Felicidad M. Alvendia before
the then Court of First Instance (CFI) of
Bulacan, 5th Judicial District, Branch VI, for
the sum of P107,481.50 representing
construction materials which the Alvendias
had purchased on credit from Bonamy.
After the Alvendias had filed a "Motion to
Dismiss" dated October 31, 1977 which was
opposed by Bonamy on November 16, 1977
and an "Answer with Affirmative and
Negative Defenses and Counterclaim" dated
December 1, 1977, both parties submitted to
the trial court on January 6, 1978 a
"Compromise Agreement" providing, among
other things:
xxx xxx xxx
"(1) That
defendants
do
hereby acknowledge the
indebtedness of their family
corporation, Doa Felisa
Village
and
Housing
Corporation, in the amount of
P107,481.50, representing the
cost of construction materials
bought on credit from
plaintiff from June 20 to
August 12, 1975 and jointly
with said family corporation,
do hereby bind themselves to
pay said obligation out of the
first release or releases of
funds from the Government
Service Insurance System
(GSIS) for housing units and
lots sold by the said

corporation to members of
the GSIS provided, however,
that
the
P47,000.00
previously assigned to Wells
and Pu shall be first satisfied
before applying such GSIS
release to satisfaction of said
indebtedness to the herein
plaintiff;
"(2) That the plaintiff and
defendants shall thereby join
hands in asking the GSIS to
expedite the releases of the
funds due to said corporation;
and
"(3) That
for
and
in
consideration
of
this
agreement the plaintiff and
defendants hereby waive any
and all further claims
monetary
or
otherwise
against each other regarding
the subject matter of this
case.
xxx xxx xxx" 2
On the same date, the trial court, finding the
aforesaid compromise agreement not to be
contrary to laws, morals, good customs, public
policy and public order, approved and adopted
the same as the decision in the case. 3
Subsequently, Bonamy moved for execution
of judgment, alleging that the Alvendias "have
not submitted any finished project with the
GSIS, thereby preventing the full realization
of the aforesaid decision." 4

On December 6, 1979, over the objection of

the Alvendias, the court ordered the issuance
of the writ prayed for. The Alvendias did not
move for reconsideration nor did they elevate
the matter to the higher courts. 5
In a motion dated April 23, 1980, Bonamy
sought the issuance of an alias writ of
execution, the first writ having been returned
unsatisfied. He admitted though in the same
motion that he received P20,000.00 in cash
from the Alvendias sometime in January 1980
and an additional amount of P4,000.00 by way
of proceeds of the sale of the Alvendias'
vehicle. 6
Pursuant to the alias writ issued by the Court
on May 2, 1980, the Bulacan provincial sheriff
levied on the Alvendias "leasehold rights"
over a fishpond (lease application no. V-1284
(EV-87) Lot I PSU-141243), located at
Baluarte, Bulacan, Bulacan.
On January 15, 1981, a certificate of sale over
said leasehold right was executed by the
Sheriff in favor of Bonamy.
More than a year later, or on February 2, 1982,
the spouses moved for the quashal and
annulment of the writ of execution, levy and
sale.
A final deed of sale was executed on January
25, 1983 and registered with the Register of
Deeds of Bulacan on April 27, 1983.
In an order dated September 10, 1984, the trial
court (now RTC of Bulacan, 3rd Judicial
Region, Br. VIII) denied the spouses' motion
to quash and ordered instead the issuance of a
writ of possession in Bonamy's favor, thus:

"Premises considered, the

pending incidents are hereby
resolved, as follows:
"1. The motion to quash or
annul the writ of execution is
hereby denied;
"2. The sale of the Toyota
Land Cruiser is hereby
declared null and void,
consequently,
let
the
defendants be restored in the
ownership and possession
thereof;
"3. The levy and sale of the
defendants'
rights
over
Foreshore Lease Application
No. V-1284 (EV-87) Lot 1
PSU-141243
is
hereby
confirmed and declared valid,
for which reason, let a writ of
possession of the said
premises
be
issued
forthwith." 7
The records show that as per sheriffs return,
possession of the fishpond was delivered to
Bonamy on October 8, 1984. 8
In a petition for certiorari and prohibition with
prayer for preliminary injunction and
temporary restraining order filed with the
Intermediate Appellate Court, (docketed as
CA-G.R. No. SP-04423) the spouses
Alvendias sought the annulment of the writ of
execution, the levy made upon the leasehold
rights and the writ of possession.

In a nutshell, the spouses argued as follows:

[1] that the writ and the alias writ of execution
levied upon properties not referred to in the
judgment by compromise; [2] the writs made
only the Alvendias liable, when under the
"agreement" their family corporation was also
supposed to be liable; [3] the writ was
premature
because
the
Compromise
Agreement contained a condition which had
not yet been fulfilled, namely, the release of a
loan from the GSIS; [4] the fishpond, owned
by the government though leased to the
Alvendias, cannot be a proper subject of a levy
on execution; and [5] the leasehold rights
possessed by the Alvendias had already
expired before the issuance of the order. 9
In its Decision dated February 27, 1985, the
IAC dismissed the aforesaid petition. The
pertinent portion is hereunder quoted, thus:
xxx xxx xxx
"Firstly, we note that after the
questioned writ of possession
had been issued, no motion
for reconsideration was
filed to give the respondent
judge an opportunity to
correct any error that may
have been committed.
"Secondly,
the
orders
complained of and which are
attached to the petition
are not certified true copies,
in
violation
of
the
requirements under the rules
of court.

"Thirdly,
the
writ
of
execution could properly levy
on the properties of the
Alvendias because their debt
had already matured and
remained unpaid despite
demands. The judgment does
not have to indicate what
specific properties should be
levied upon.
"Fourthly, there could be no
execution against the family
corporation because it was
not a party to the case, was
not a party or signatory to the
compromise
agreement.
Neither was it represented by
the Alvendias.
"Fifthly, the issuance of the
writs was not premature.
There is nothing in the
compromise
agreement
which says that the release of
the GSIS loan was a
condition precedent to the
payment of the debt. True
there was an indication by the
Alvendias as to where they
would obtain the needed
financing, but this did not
make the obtaining of the
same a suspensive condition
which would give rise to the
creation of their obligation.
The obligation to pay was
admittedly there even
before any reference to the
GSIS. Had they desired to

make the fund release a

condition sine qua non, words
should have been used to that
effect. Indeed, it is absurd to
say that if the GSIS would
not release the money the
Alvendias would be excused
from the payment of their
acknowledged indebtedness.

any amount as the court may determine to be

due (the said amount was reached by
deducting from the total sum of P107,481.50:
P20,000.00, P4,000.00 representing the value
of the Toyota Land Cruiser and the further
amount of P46,000.00 representing the actual
value of the Toyota Land Cruiser minus the
amount of P4,000.00 allegedly realized from
the execution sale thereof). 11

"Sixthly, it is not the fishpond

that was levied upon but the
leasehold rights of the
Alvendias.

On September 11, 1985, the IAC issued two

resolutions, denominated as Resolutions I and
II.

"Seventhly, if it is really true

that the lease had already
expired before the writs were
issued, this is a matter that
can be raised by the
government,
not
the
Alvendias who have already
ceased to become real parties
in interest regarding the
property. . . . . . .
"WHEREFORE, the instant
petition is denied due course,
and is hereby DISMISSED.
The
restraining
order
previously issued is hereby
lifted." 10
The Alvendias filed an urgent motion for
reconsideration. Pending action thereon, the
spouses manifested to the court, thru motion,
their willingness to immediately pay to
Bonamy the remaining balance of the
judgment sought to be enforced, which they
place at P37,481.50, plus interests due and/or

Resolution I denied the Alvendias' motion for

reconsideration for lack of merit, without
prejudice to what was stated in Resolution II
hereunder.
Resolution II granted their motion to satisfy
the judgment sought to be enforced in cash
thereby directing the parties to submit to the
court an agreement duly signed by both parties
regarding full satisfaction of the judgment but
only after the total amount involved in said
judgment had been tendered and delivered to
Bonamy. 12
The Alvendias then tendered payment to
Bonamy in the form of a cashier's check in the
amount of P100,000.00. 13 Bonamy refused
said tender of payment, and instead moved for
a reconsideration of Resolution II. LLjur
In the meantime, the spouses moved for the
issuance of a temporary restraining order to
prevent or stop the allegedly unjust
enforcement of the questioned writ of
execution/possession and to prevent the sheriff
and Bonamy and all persons acting under them

from entering and encroaching on the fishpond

area.
On October 2, 1985, the IAC restrained
Bonamy and his co-respondents therein from
enforcing
the
questioned
Writ
of
Execution/Possession issued in Civil Case No.
5182-M, as well as from entering and
encroaching further into the subject
fishpond. 14
Bonamy moved for the lifting of that order on
the averment, among others, that the acts
sought to be restrained had already been
executed, Bonamy having been placed in
possession on October 8, 1984 by Deputy
Sheriff Rufino I. Santiago of Bulacan by
virtue of the Writ of Possession issued in Civil
Case No. 5182-M. 15
In an urgent motion for extension of time to
file appeal by certiorari (from respondent
court's order denying their motion for
reconsideration) spouses Alvendias elevated
their case to this Tribunal, docketed as G.R.
No. 72138. Such motion was granted by the
Court. A second motion was, however, denied.
Hence, no petition was filed in G.R.
No. 72138.
On October 8, 1985, the IAC issued three
resolutions embodied in a single document:
Resolution I denying Bonamy's motion for
reconsideration; II ordering him to
comment on the motion for Deposit filed by
the Alvendias; III ordering the spouses to
comment on the Manifestation and Motion to
lift restraining order filed by Bonamy.
Hence, this petition for certiorari and
prohibition, praying for the annulment of

respondent court's Resolution II of September

11, 1985 and its Resolution I of October 8,
1985, filed with this Court on October 21,
1985 by Bonamy and docketed as G.R. No.
72373.
As earlier stated, on February 3, 1986,
notwithstanding the Alvendias' failure to file a
petition in G.R. No. 72138, the Court resolved
to consolidate the two cases, namely, G.R.
Nos. 72138 and 72373, in the resolution of
February 3, 1986, of the First Division of this
Court. 16
On February 24, 1986, Bonamy, as private
respondent in G.R. No. 72138, filed a
manifestation that since the Alvendias did not
file their petition in said case, the proceeding
should be ordered dismissed and that entry of
the IAC judgment be ordered.
Upon the Alvendias' failure to comply with the
court's order to comment on the
aforementioned manifestation, this Court
issued a 'show cause' resolution to the spouses.
Pleading absolute good faith and honesty and
attributing failure to file the required comment
to the confusing circumstances engendered by
the issued resolutions (denying respondents'
motion for reconsideration but granting their
motion to satisfy judgment in cash) the
Alvendias prayed the Court to consider instead
their urgent petition (to extend time to file
appeal) as their sufficient appeal, anchoring
their entreaty on Bonamy's petition which is
also pending in this Court and which has,
anyway, opened the entire case for review.
This explanation and manifestation of counsel
for private respondents was noted in the

resolution of October 15, 1986 of the Second

Division of this Court where this case was
eventually referred. *
The petition in G.R. No. 72373 is impressed
with merit. The pivotal issue in this case is
whether or not the judgment debtors may
successfully ask that they be allowed to pay
the judgment debt in cash long after they have
failed to pay or redeem their properties which
have been sold in execution.
Bonamy puts forward the averment that
respondent court committed grave abuse of
discretion in granting the Alvendias' motion
that they be allowed to pay the judgment debt
in cash.
He anchors his contention on the fact that
there having been a valid levy and sale on
execution of the Alvendias' leasehold rights
over the fishpond in question, there is no
longer any money judgment to be satisfied.
He maintains the position that all the
questioned writs herein as well as the
questioned orders have already been found by
respondent IAC to be proper and legal and had
in fact dismissed the petition of the Alvendias
in its decision of February 27, 1985. Since
then, he has been in ownership and possession
of the disputed fishpond in Baluarte, Bulacan,
and has been exercising all the acts of
possession with respect to the same. 17
Hence, petitioner claims that the assailed
resolutions are in effect [a] an annulment of
the assailed Orders and Writs of the Bulacan
Regional Trial Court, the Certificate of Sale
and the Final Deed of Sale of the Leasehold
Rights over the Foreshore Lands; [b] an

extension of the Alvendias' period to redeem

the leasehold rights over said land; and [c]
orders directing Bonamy and the Alvendias to
enter into a contract of sale over said leasehold
rights for the price of the judgment debt
embodied in the Compromise Agreement. 18
Verily, it is unrefuted that the writs and orders
of the lower court sought to be annulled or at
least reopened are already final and executory
and in fact already executed.
The judgment which was executed was a
compromise judgment, duly approved by the
court and therefore, final and immediately
executory. 19 Bonamy was clearly entitled to
execution since the Alvendias failed to pay on
time the judgment. Hence, the Bulacan Court
ordered the execution thereof on December 9,
1979. 20
The compromise judgment against the
Alvendias had been duly and legally executed
and fully satisfied as of January 15, 1981 in
accordance with Section 15 of Rule 39 of the
Rules of Court when the Bulacan Sheriff
levied on the Alvendias' foreshore leasehold
rights by selling the same and paying the
judgment creditor Bonamy. The Alvendias had
one year within which to redeem said property
rights but they failed to do so. Hence, the
Sheriff issued the Final Deed of Sale on
January 25, 1983.
As above stated, on certiorari and prohibition
in CA-G.R. No. SP-04423, all these orders
and writs, taken up one by one by the
Intermediate Appellate Court were found to be
legal and proper for which reason, the petition

was dismissed in the decision of February 27,

1985.
In this Court, private respondents moved for
extension of time to file a petition for review
in G.R. No. 72138 but failed to file the same,
thereby foreclosing their right to appeal.
In any event, it is axiomatic that there is no
justification in law and in fact for the
reopening of a case which has long become
final and which has in fact been
executed. 21 Time and again this Court has
said that the doctrine of finality of judgments
is grounded on fundamental consideration of
public policy and sound practice that at the
risk of occasional error the judgments of
courts must become final at some definite date
fixed by law. 22
On the other hand, the Alvendias invoke
equity and aver that the IAC acted correctly in
granting their motion to pay the balance of the
judgment indebtedness in view of highly
exceptional circumstances such as the
supposedly grossly fraudulent irregularities
committed by Bonamy and the Special Sheriff
of Bulacan.
It is a settled rule, however, that said Special
Sheriff is under the control and supervision of
the trial court which issued the assailed writ of
execution to the exclusion of other courts.
Accordingly, the court which rendered the
judgment has a general supervisory control
over its process of execution and this power
carries with it the right to determine every
question of fact and law which may be
involved in the execution. 23 But as earlier
stated, private respondents neither moved for

reconsideration of the December 6, 1979 order

of the trial court directing the issuance of the
writ of execution, nor appealed the same to the
higher courts.
In any event, the Alvendias cannot invoke
equity as a ground for reopening the case and
making the payment of the judgment in cash
possible. The records show that they had all
the opportunity to make such payments on
four occasions but failed. These are: [1] from
the time they got the building and construction
materials worth P107,461.50 from the
petitioner (from June 26 to August 12, 1975)
up to the time they agreed to a compromise
agreement on January 6, 1978; [2] from the
compromise judgment to the time execution
was ordered by the respondent court (Order
dated December 6, 1979); [3] from the
Execution Order to the Execution Sale (on
January 15, 1981); and [4] from the Execution
Sale up to the end of the redemption period,
finally ending in the Final Deed of Sale. 24
There is no question therefore, that the
Alvendias failed to pay on time the judgment
of which the execution sale was a necessary
consequence. They also failed to redeem the
property within the required period despite the
fact that the Final Deed of Sale was issued
only on January 25, 1983, long past the
aforesaid period; undeniably showing a lack of
intention or capability to pay the same.
Instead the offer to pay the judgment in cash
was first made by private respondents
Alvendias on April 23, 1985 or two months
after the decision of respondent Appellate
Court on February 27, 1985 and more than
two years after the redemption period had

elapsed. More importantly, the offer was made

after Bonamy had introduced improvements
on the property worth one million pesos
(P1,000,000.00) as evidenced by irrefutable
proof. Of course, the Alvendias claim the
same amount as the value of the fishpond
presumably before execution but such claim
besides having been raised only on appeal,
specifically after the promulgation of the
decision of the Intermediate Appellate Court
on February 27, 1985, is unsupported by
evidence on record. On the contrary, petitioner
Bonamy's pictures of the leased premises
before and after he took possession of the
same belie said claim of private
respondents. 25
As insisted upon by petitioner, the money
judgment against the Alvendias has already
been satisfied and there is no more need to
pay, in cash or otherwise. Hence, as ruled by
this Court, when judgment has been satisfied,
the same passes beyond review, for
satisfaction thereof is the last act and end of
the proceedings. Payment produces permanent
and irrevocable discharge. 26
On the other hand, equity has been aptly
described as "a justice outside legality"; which
is applied only in the absence of and never
against statutory law or as in this case, judicial
rules of procedure. 27 The rule is "equity
follows the law" but where a particular
remedy is given by the law and that remedy is
bounded and circumscribed by particular
rules, it would be very improper, for the court
to take it up where the law leaves it and to
extend it further than the law allows. 28 There
may be a moral obligation but if there is no
enforceable legal duty, the action for

reconveyance must fail. 29 Courts exercising

equity jurisdiction are bound by rules of law
and have no arbitrary discretion to disregard
them. Equitable reasons will not control
against any well-settled rule of law or public
policy. 30
Moreover, it is oft repeated that "He who
comes into Equity must come with clean
hands." 31 At this stage, to allow private
respondents to pay in cash the balance of the
judgment account for which they offered
P100,000.00 to redeem the property on which
petitioner has spent one million pesos
(P1,000,000.00) in terms of improvements
introduced would be less than fair. If equity is
to be applied at all, it should be applied for the
benefit of the petitioner. Thus, this Court in
applying equity jurisprudence in a partition
case, ruled that improvements introduced on
the property by one who necessarily and in
good faith improved the same and enhanced
its value at his own cost, should be taken into
account under the familiar principle that "one
who seeks equity must do equity." 32
In resume, the Alvendias, after having allowed
the period of redemption to lapse without
availing themselves of the same, and after
petitioner had introduced improvements on the
property at the latter's expense, cannot now be
allowed to redeem the property sold to the
latter thru the expediency of a motion or
manifestation. cdrep
As to other matters, there appears to be no
cogent reason to disturb the findings and
conclusions of the Intermediate Appellate
Court in its decision of February 27, 1985
which has become final and executory when

the Alvendias failed to file their contemplated

petition for review on certiorari in G.R.
No. 72138. It has been held that failure to
perfect an appeal renders the lower court's
judgment final and executory and a
modification of such judgment by the
appellate
court
cannot
be
allowed.
Furthermore, an appellee who is not also an
appellant may also assign errors in his brief
where his purpose is to maintain the judgment
on other grounds, but he may not do so if his
purpose is to have the judgment modified or
reversed, for, in such case, he must appeal. 33
However, where there is an ambiguity caused
by an omission or mistake in the dispositive
portion of the decision, in this case in the
questioned "Writ of Possession" issued by the
trial court, where the twenty-three (23) hectare
foreshore land (23.467 hec.) described in the
Sheriff's Certificate of Sale and Final Deed of
Sale 34 became a forty-hectare foreshore land
(40.63 hec.), 35 it has been held that this Court
may clarify such ambiguity by an amendment
even after the judgment had become final. 36
WHEREFORE, the assailed resolutions are
hereby SET ASIDE and the decision
dismissing the Alvendias' petition is
AFFIRMED save that portion upholding the
validity of the writ of possession which
continued an error in property description.
Hence, the writ of possession is hereby
AMENDED to conform to the description
appearing in the Certificate of Sale and the
Final Deed of Sale. Let the restraining order
issued by the Intermediate Appellate Court on
October 2, 1985 relative to the enforcement of
said writ be lifted accordingly.

Petitioner is hereby ordered to return to

private respondents, the amount of P12,518.50
pesos, which amount represents the difference
between the execution price of P100,000.00
and P87,481.50, the latter amount having been
arrived at by deducting P20,000.00 from the
total amount of indebtedness which is
P107,481.50. 37
In G.R. No. 72138, the petition for review on
certiorari of Resolution I of the Intermediate
Appellate Court denying private respondents'
motion for reconsideration of its decision of
February 27, 1985, not having been filed,
entry of judgment of aforesaid decision may
now be made by said Appellate Court. LexLib
SO ORDERED.
||| (Spouses Alvendia v. Intermediate Appellate
Court, G.R. No. 72138, 72373, [January 22,
1990])
[G.R. No. 82670. September 15, 1989.]
DOMETILA M. ANDRES, doing
business under the name and style
"IRENE'S WEARING APPAREL,"
petitioner, vs. MANUFACTURERS
HANOVER & TRUST
CORPORATION and COURT OF
APPEALS,respondents.
SYLLABUS
1.CIVIL PROCEDURE; REVIEW ON
CERTIORARI UNDER RULE 45 OF THE
REVISED RULE OF COURT; CONFINED

TO ERRORS OF LAW. Only questions of

law may be raised in a petition for certiorari
under Rule 45 of the Revised Rules of Court,
the findings of fact of the Court of Appeals
being conclusive.

DECISION

CORTES, J p:

2.STATUTORY
CONSTRUCTION;
SPECIFIC PROVISION OF LAW PREVAILS
OVER COMMON LAW PRINCIPLE.
Between a common law principle and a
statutory provision, the latter must prevail in
this jurisdiction.

Assailed in this petition for review on

certiorari is the judgment of the Court of
Appeals, which, applying the doctrine
of solutio indebiti, reversed the decision of the
Regional Trial Court, Branch CV, Quezon City
by deciding in favor of private respondent.

3.OBLIGATIONS
AND
CONTRACTS;
ARTICLE 2154 OF THE CIVIL CODE;
REQUISITES TO ITS APPLICATION.
For Article 2154 of the Civil Code to apply the
following requisites must concur: (1) that he
who paid was not under obligation to do so;
and (2) that payment was made by reason of
an essential mistake of fact.

Petitioner, using the business name "Irene's

Wearing Apparel," was engaged in the
manufacture of ladies garments, children's
wear, men's apparel and linens for local and
foreign buyers. Among its foreign buyers was
Facets Funwear, Inc. (hereinafter referred to as
FACETS) of the United States.

4.ID.; ID.; APPLICABLE IN THE CASE AT

BAR. Since Article 2154 of the Civil Code
which embodies the doctrine of solutio
indebiti applies in the case at bar, the court
must reject the common law principle that if
one of two persons must suffer by the
wrongful act of a third persons, the loss must
be borne by one whose negligence was the
proximate cause of the loss.
5.ID.; ACTIONS BASED UPON A QUASICONTRACT; PRESCRIPTIVE PERIOD
THEREOF. An action for recovery of a
sum of money erroneously received by one
who has no right to demand it prescribes in six
years.

In the course of the business transaction

between the two, FACETS from time to time
remitted certain amounts of money to
petitioner in payment for the items it had
purchased. Sometime in August 1980,
FACETS instructed the First National State
Bank of New Jersey, Newark, New Jersey,
U.S.A. (hereinafter referred to as FNSB) to
transfer $10,000.00 to petitioner via Philippine
National Bank, Sta. Cruz Branch, Manila
(hereinafter referred to as PNB). llcd
Acting on said instruction, FNSB instructed
private respondent Manufacturers Hanover
and Trust Corporation to effect the abovementioned transfer through its facilities and to
charge the amount to the account of FNSB
with private respondent. Although private
respondent was able to send a telex to PNB to
pay petitioner $10,000.00 through the

Pilipinas Bank, where petitioner had an

account, the payment was not effected
immediately because the payee designated in
the telex was only "Wearing Apparel." Upon
query by PNB, private respondent sent PNB
another telex dated August 27, 1980 stating
that the payment was to be made to "Irene's
Wearing Apparel." On August 28, 1980,
petitioner received the remittance of
$10,000.00 through Demand Draft No.
225654 of the PNB.
Meanwhile, on August 25, 1980, after learning
about the delay in the remittance of the money
to petitioner, FACETS informed FNSB about
the situation. On September 8, 1980, unaware
that petitioner had already received the
remittance, FACETS informed private
respondent about the delay and at the same
time amended its instruction by asking it to
effect the payment through the Philippine
Commercial and Industrial Bank (hereinafter
referred to as PCIB) instead of PNB.
Accordingly, private respondent, which was
also unaware that petitioner had already
received the remittance of $10,000.00 from
PNB instructed the PCIB to pay $10,000.00 to
petitioner. Hence, on September 11, 1980,
petitioner received a second $10,000.00
remittance.
Private respondent debited the account of
FNSB for the second $10,000.00 remittance
effected through PCIB. However, when FNSB
discovered that private respondent had made a
duplication of the remittance, it asked for a
recredit of its account in the amount of
$10,000.00. Private respondent complied with
the request.

Private respondent asked petitioner for the

return of the second remittance of $10,000.00
but the latter refused to pay. On May 12, 1982
a complaint was filed with the Regional Trial
Court, Branch CV, Quezon City which was
decided in favor of petitioner as defendant.
The trial court ruled that Art. 2154 of the New
Civil Code is not applicable to the case
because the second remittance was made not
by mistake but by negligence and petitioner
was not unjustly enriched by virtue thereof
[Record, p. 234]. On appeal, the Court of
Appeals held that Art. 2154 is applicable and
reversed the RTC decision. The dispositive
portion of the Court of Appeals' decision reads
as follows:
WHEREFORE, the appealed
decision
is
hereby
REVERSED and SET ASIDE
and another one entered in
favor of plaintiff-appellant
and
against
defendantappellee Domelita (sic) M.
Andres, doing business under
the name and style "Irene's
Wearing
Apparel"
to
reimburse and/or return to
plaintiff-appellant the amount
of $10,000.00, its equivalent
in Philippine currency, with
interests at the legal rate from
the filing of the complaint on
May 12, 1982 until the whole
amount is fully paid, plus
twenty percent (20%) of the
amount due as attorney's fees;
and to pay the costs.

With costs against defendantappellee.

SO ORDERED. [Rollo, pp.
29-30.]
Thereafter, this petition was filed.
The sole issue in this case is whether or not
the private respondent has the right to recover
the second $10,000.00 remittance it had
delivered to petitioner. The resolution of this
issue would hinge on the applicability of Art.
2154 of the New Civil Code which provides
that:
Art.
2154.If
something
received when there is no
right to demand it, and it was
unduly delivered through
mistake, the obligation to
return it arises.
This provision is taken from Art. 1895 of the
Spanish Civil Code which provided that:
Art. 1895.If a thing is
received when there was no
right to claim it and which,
through an error, has been
unduly
delivered,
an
obligation to restore it arises.
In Velez v. Balzarza, 73 Phil. 630 (1942), the
Court, speaking through Mr. Justice Bocobo
explained the nature of this article thus:
Article 1895 [now Article
2154] of the Civil Code
abovequoted, is therefore
applicable.
This
legal
provision, which determines

the quasi-contract of solutio

indebiti, is one of the
concrete manifestations of the
ancient principle that no one
shall enrich himself unjustly
at the expense of another. In
the Roman Law Digest the
maxim was formulated thus:
"Jure naturae acquum est,
neminem
cum
alterius
detrimento et injuria fieri
locupletiorem." And the
Partidas declared: "Ninguno
non
deue
enriquecerse
tortizeramente con dano de
otro." Such axiom has grown
through the centuries in
legislation, in the science of
law and in court decisions.
The lawmaker has found it
one of the helpful guides in
framing statutes and codes.
Thus, it is unfolded in many
articles scattered in the
Spanish Civil Code. (See for
example, articles, 360, 361,
464, 647, 648, 797, 1158,
1163, 1295, 1303, 1304, 1893
and 1895, Civil Code.) This
time-honored aphorism has
also been adopted by jurists
in their study of the conflict
of rights. It has been accepted
by the courts, which have not
hesitated to apply it when the
exigencies of right and equity
demanded its assertion. It is a
part of that affluent reservoir
of justice upon which judicial

discretion draws whenever

the statutory laws are
inadequate because they do
not speak or do so with a
confused voice. [at p. 632.]
For this article to apply the following
requisites must concur: "(1) that he who paid
was not under obligation to do so; and, (2) that
payment was made by reason of an essential
mistake of fact" [City of Cebu v. Piccio, 110
Phil. 558, 563 (1960)]. cdrep
It is undisputed that private respondent
delivered the second $10,000.00 remittance.
However, petitioner contends that the doctrine
of solutio indebiti does not apply because its
requisites are absent.
First, it is argued that petitioner had the right
to demand and therefore to retain the second
$10,000.00 remittance. It is alleged that even
after the two $10,000.00 remittances are
credited to petitioner's receivables from
FACETS, the latter allegedly still had a
balance of $49,324.00. Hence, it is argued that
the last $10,000.00 remittance being in
payment of a pre-existing debt, petitioner was
not thereby unjustly enriched.
The contention is without merit.
The contract of petitioner, as regards the sale
of garments and other textile products, was
with FACETS. It was the latter and not private
respondent which was indebted to petitioner.
On the other hand, the contract for the
transmittal of dollars from the United States to
petitioner was entered into by private
respondent with FNSB. Petitioner, although
named as the payee was not privy to the

contract of remittance of dollars. Neither was

private respondent a party to the contract of
sale between petitioner and FACETS. There
being no contractual relation between them,
petitioner has no right to apply the second
$10,000.00 remittance delivered by mistake by
private respondent to the outstanding account
of FACETS.
Petitioner next contends that the payment by
respondent bank of the second $10,000.00
remittance was not made by mistake but was
the result of negligence of its employees.
In connection with this the Court of Appeals
made the following finding of facts: LLphil
The fact that Facets sent only
one remittance of $10,000.00
is not disputed. In the written
interrogatories sent to the
First National State Bank of
New Jersey through the
Consulate General of the
Philippines in New York,
Adelaide C. Schachel, the
investigation
and
reconciliation clerk in the
said bank testified that a
request to remit a payment
for Facet Funwear Inc. was
made in August, 1980. The
total amount which the First
National State Bank of New
Jersey actually requested the
plaintiff-appellant
Manufacturers Hanover &
Trust Corporation to remit to
Irene's Wearing Apparel was
US $10,000.00. Only one

remittance was requested by

First National State Bank of
New Jersey as per instruction
of Facets Funwear (Exhibit
"J", pp. 4-5).
That there was a mistake in
the second remittance of
US$10,000.00 is borne out by
the fact that both remittances
have the same reference
invoice number which is 263
80.
(Exhibits
"A-1Deposition of Mr. Stanley
Panasow"
and
"A-2Deposition of Mr. Stanley
Panasow").
Plaintiff-appellant made the
second remittance on the
wrong
assumption
that
defendant-appellee did not
receive the first remittance of
US$10,000.00. [Rollo, pp.
26-27.]
It is evident that the claim of petitioner is
anchored on the appreciation of the attendant
facts which petitioner would have this Court
review. The Court holds that the finding by the
Court of Appeals that the second $10,000.00
remittance was made by mistake, being based
on substantial evidence, is final and
conclusive. The rule regarding questions of
fact being raised with this Court in a petition
for certiorari under Rule 45 of the Revised
Rules of Court has been stated in Remalante v.

Tibe, G.R. No. 59514, February 25, 1988, 158

SCRA 138, thus: Cdpr
The rule in this jurisdiction is
that only questions of law
may be raised in a petition for
certiorari under Rule 45 of
the Revised Rules of Court.
"The jurisdiction of the
Supreme Court in cases
brought to it from the Court
of Appeals is limited to
reviewing and revising the
errors of law imputed to it, its
findings of fact being
conclusive" [Chan v. Court of
Appeals, G.R. No. L-27488,
June 30, 1970, 33 SCRA 737,
reiterating a long line of
decisions]. This Court has
emphatically declared that "it
is not the function of the
Supreme Court to analyze or
weigh such evidence all over
again, its jurisdiction being
limited to reviewing errors of
law that might have been
committed by the lower
court" [Tiongco v. De la
Merced, G.R. No. L-24426,
July 25, 1974, 58 SCRA 89;
Corona v. Court of Appeals,
G.R. No. L-62482, April 28,
1983, 121 SCRA 865;
Baniqued v. Court of
Appeals, G.R. No. L-47531,
February 20, 1984, 127
SCRA
596].
"Barring,
therefore, a showing that the

findings complained of are

totally devoid of support in
the record, or that they are so
glaringly erroneous as to
constitute serious abuse of
discretion, such findings must
stand, for this Court is not
expected or required to
examine or contrast the oral
and documentary evidence
submitted by the parties"
[Santa Ana, Jr. v. Hernandez,
G.R. No. L-16394, December
17, 1966, 18 SCRA 973]. [at
pp. 144-145.]
Petitioner invokes the equitable principle that
when one of two innocent persons must suffer
by the wrongful act of a third person, the loss
must be borne by the one whose negligence
was the proximate cause of the loss.
The rule is that principles of equity cannot be
applied if there is a provision of law
specifically applicable to a case [Phil. Rabbit
Bus Lines, Inc. v. Arciaga, G.R. No. L-29701,
March 16, 1987, 148 SCRA 433; Zabat, Jr. v.
Court of Appeals, G.R. No. L-36958, July 10,
1986, 142 SCRA 587; Rural Bank of
Paraaque, Inc. v. Remolado, G.R. No. 62051,
March 18, 1985, 135 SCRA 409; Cruz v.
Pahati, 98 Phil. 788 (1956)]. Hence, the Court
in the case of De Garcia v. Court of
Appeals, G.R. No. L-20264, January 30, 1971,
37
SCRA
129,
citing Aznar
v.
Yapdiangco, G.R. No. L-18536, March 31,
1965, 13 SCRA 486, held:
. . . The common law
principle that where one of

two innocent persons must

suffer by a fraud perpetrated
by another, the law imposes
the loss upon the party who,
by his misplaced confidence,
has enabled the fraud to be
committed, cannot be applied
in a case which is covered by
an express provision of the
new Civil Code, specifically
Article 559. Between a
common law principle and a
statutory provision, the latter
must
prevail
in
this
jurisdiction. [at p. 135.]
Having shown that Art. 2154 of the Civil
Code, which embodies the doctrine of solutio
indebiti, applies in the case at bar, the Court
must reject the common law principle invoked
by petitioner. cdll
Finally, in her attempt to defeat private
respondent's claim, petitioner makes much of
the fact that from the time the second
$10,000.00 remittance was made, five hundred
and ten days had elapsed before private
respondent demanded the return thereof.
Needless to say, private respondent instituted
the complaint for recovery of the second
$10,000.00 remittance well within the six
years prescriptive period for actions based
upon a quasi-contract [Art. 1145 of the New
Civil Code].
WHEREFORE, the petition is DENIED and
the decision of the Court of Appeals is hereby
AFFIRMED.
SO ORDERED.

||| (Andres v. Manufacturers Hanover & Trust

Corp., G.R. No. 82670, [September 15, 1989],
258 PHIL 425-431)
[G.R. No. 88979. February 7, 1992.]
LYDIA O.
CHUA, petitioner, vs. THE CIVIL
SERVICE COMMISSION, THE
NATIONAL IRRIGATION
ADMINISTRATION, THE
DEPARTMENT OF BUDGET AND
MANAGEMENT, respondent.
SYLLABUS
1. POLITICAL
LAW;
STATUTES; REPUBLIC ACT NO. 6683EARLY
RETIREMENT
LAW;
ITS
COVERAGE AND OBJECTIVE. Pursuant
to the policy of streamlining and trimming the
bureaucracy, Republic Act No. 6683 was
approved on 2 December 1988 providing for
benefits for early retirement and voluntary
separation from the government service as
well as for involuntary separation due to
reorganization. Deemed qualified to avail of
its benefits are those enumerated in Sec. 2 of
the Act, as follows: "Sec. 2. Coverage. This
Act shall cover all appointive officials and
employees of the National Government,
including government-owned or controlled
corporations with original charters, as well as
the personnel of all local government units.
The benefits authorized under this Act shall
apply to all regular, temporary, casual and

emergency employees, regardless of age, who

have rendered at least a total of two (2)
consecutive years of government service as of
the date of separation. Uniformed personnel of
the Armed Forces of the Philippines including
those of the PC-INP are excluded from the
coverage of this Act." Republic Act No.
6683 seeks
to
cover
and
benefits regular, temporary, casual and emerg
ency employees who have rendered at least a
total of two (2) consecutive years of
government service. The objective of the Early
Retirement or Voluntary Separation Law is to
trim the bureaucracy, hence, vacated positions
are deemed abolished upon early/voluntary
retirement of their occupants.
2. ID.;
CIVIL
SERVICE;
CHARACTERIZATION OF CAREER AND
NON-CAREER
SERVICE.

The Administrative
Code of
1987
characterizes the Career Service as: "(1) Open
Career positions for appointment to which
prior qualification in an appropriate
examination is required; (2) Closed Career
positions which are scientific, or highly
technical in nature; these include the faculty
and academic staff of state colleges and
universities, and scientific and technical
positions in scientific or research institutions
which shall establish and maintain their own
merit systems; (3) Positions in the Career
Executive Service; namely, Undersecretary,
Assistant Secretary, Bureau Director, Assistant
Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department
Service and other officers of equivalent rank
as may be identified by the Career Executive
Service Board, all of whom are appointed by

the President. (4) Career officers, other than

those in the Career Executive Service, who are
appointed by the President, such as the
Foreign Service Officers in the Department of
Foreign Affairs; (5) Commission officers and
enlisted men of the Armed Forces which shall
maintain a separate merit system;(6) Personnel
of
government-owned
or
controlled
corporations,
whether
performing
governmental or proprietary functions, who do
not fall under the non-career service; and (7)
Permanent laborers, whether skilled, semiskilled, or unskilled." The Non-Career
Service, on the other hand, is characterized by:
". . . (1) entrace on bases other than those of
the usual tests of merit and fitness utilized for
the career service; and (2) tenure which is
limited to a period specified by law, or which
is coterminous with that of the appointing
authority or subject to his pleasure, or which is
limited to the duration of a particular project
for which purpose employment was made."
Included in the non-career service are: 1.
elective officials and their personal or
confidential staff; 2. secretaries and other
officials of Cabinet rank who hold their
positions at the pleasure of the President and
their personal confidential staff(s); 3.
Chairman and Members of Commissions and
boards with fixed terms of office and their
personal or confidential staff; 4. contractual
personnel or those whose employment in the
government is in accordance with a special
contract to undertake a specific work or job
requiring special or technical skills not
available in the employing agency, to be
accomplished within a specific period, which
in no case shall exceed one year and performs
or accomplishes the specific work or job,

under his own responsibility with a minimum

of direction and supervision from the hiring
agency; 5. emergency and seasonal
personnel." There is another type of noncareer employee: "Casual where and when
employment is not permanent but occasional,
unpredictable, sporadic and brief in nature
(Caro v. Rilloroza, 102 Phil. 70; Manuel v. P.P.
Gocheco Lumber Co., 96 Phil. 945)".
3. ID.;
ID.;
CAREER
SERVICE;
CLASSIFICATION OF GOVERNMENT
EMPLOYEES' APPOINTMENT STATUS.
The appointment status of government
employees in the career service is classified as
follows: 1. permanent one issued to a
person who has met the requirements of the
position to which appointment is made, in
accordance with the provisions of the Civil
Service Act and the Rules and Standards
promulgated in pursuance thereof; 2.
temporary In the absence of appropriate
eligibles and it becomes necessary in the
public interest to fill a vacancy, a temporary
appointment shall be issued to a person who
meets all the requirements for the position to
which he is being appointed except the
appropriate civil service eligibility: Provided,
That such temporary appointment shall not
exceed twelve months, but the appointee may
be replaced sooner if a qualified civil service
eligible becomes available.
4. ID.; ID.; EMPLOYMENT STATUS OF
PERSONNEL HIRED UNDER FOREIGNASSISTED PROJECTS, CONSIDERED
COTERMINOUS. The employment status
of personnel hired under foreign assisted
projects is considered co-terminous, that is,
they are considered employees for the duration

of the project or until the completion or

cessation of said project (CSC Memorandum
Circular No. 39, S. 1990, 27 June 1990).
5. ID.; ID.; TENURIAL EMPLOYEES.
What substantial differences exist, if any,
between casual, emergency, seasonal, project,
co-terminous or contractual personnel? All are
tenurial employees with no fixed term, noncareer, and temporary.
6. ID.; ID.; CO-TERMINOUS EMPLOYEES;
ALSO
COVERED
BY
EARLY
RETIREMENT LAW. CSC Memorandum
Circular No. 11, series of 1991 (5 April 1991)
characterizes the status of a co-terminous
employee "(3) Co-terminous status shall be
issued to a person whose entrance in the
service is characterized by confidentiality by
the appointing authority or that which is
subject to his pleasure or co-existent with his
tenure." A co-terminous employee is a noncareer
civil
servant,
like casual and emergency employees. We see
no solid reason why the latter are extended
benefits under the Early Retirement Law but
the former are not. Co-terminous or project
personnel, on the other hand, who have
rendered years of continuous service should be
included in the coverage of the Early
Retirement Law, as long as they file their
application prior to the expiration of their
term, and as long as they comply with CSC
regulations promulgated for such purpose.
After all, co-terminous personnel are also
obligated to the government for GSIS
contributions, medicare and income tax
payments, with the general disadvantage of
transience.

7. ID.; ID.; NON-PROJECT REGULAR AND

PERMANENT EMPLOYEES. The case
of Fegurin, et al. v. NLRC, et al., comes to
mind where, workers belonging to a work
pool, hired and re-hired continuously from one
project to another were considered nonproject-regular and permanent employees.
Petitioner Lydia Chua was hired and re-hired
in four (4) successive projects during a span of
fifteen (15) years. Although no proof of the
existence of a work pool can be assumed, her
service record cannot be disregarded.
8. ID.; STATUTORY CONSTRUCTION;
LEGAL MAXIMS; EXPRESSIO UNIUS EST
EXCLUSIO
ALTERIUS AND CASUS
OMISSUS PRO OMISSO HABENDUS EST;
CONSTRUED. Specifically excluded from
the benefits are uniformed personnel of the
AFP including those of the PC-INP. It can be
argued that, expressio unius est exclusio
alterius. The legislature would not have made
a specific enumeration in a statute had not the
intention been to restrict its meaning and
confine its terms and benefits to those
expressly mentioned or casus omissus pro
omisso habendus est A person, object or
thing omitted from an enumeration must be
held to have been omitted intentionally.
9. ID.; ID.; DOCTRINE OF NECESSARY
IMPLICATION; APPLICABLE IN CASE AT
BAR. The maxim of expressio unius est
exclusio alterius should not be the applicable
maxim in this case but the doctrine
of necessary implication which holds that:
"No statute can be enacted that can provide all
the details involved in its application. There is
always an omission that may not meet a
particular situation. What is thought, at the

time of enactment, to be an all-embracing

legislation may be inadequate to provide for
the unfolding events of the future. So-called
gaps in the law develop as the law is enforced.
One of the rules of statutory construction used
to fill in the gap is the doctrine of necessary
implication. The doctrine states that what is
implied in a statute is as much a part thereof as
that which is expressed. Every statute is
understood, by implication, to contain all such
provisions as may be necessary to effectuate
its object and purpose, or to make effective
rights, powers, privileges or jurisdiction which
it grants, including all such collateral and
subsidiary consequences as may be fairly and
logically inferred from its terms. Ex
necessitate legis. And every statutory grant of
power, right or privilege is deemed to include
all incidental power, right or privilege. This is
so because the greater includes the lesser,
expressed in the maxim, in eo plus sit, simper
inest et minus."
10. ID.; CONSTITUTIONAL LAW; EQUAL
PROTECTION CLAUSE; APPLICABILITY
THEREOF. Art. III, Sec. 1 of the
1987 Constitution guarantees: "No person
shall be deprived of life, liberty, or property
without due process of law, nor shall any
person be denied the equal protection of the
laws." ". . . In Felwa vs. Salas, L-26511, Oct.
29, 1966, We ruled that the equal protection
clause applies only to persons or things
identically situated and does not bar a
reasonable classification of the subject of
legislation, and a classification is reasonable
where (1) it is based on substantial distinctions
which make real differences; (2) these are
germane to the purpose of the law; (3) the

classification applies not only to present

conditions but also to future conditions which
are substantially identical to those of the
present; (4) the classification applies only to
those who belong to the same class."
11. LABOR LAW; REGULAR EMPLOYEE;
DEFINED UNDER LABOR CODE; NO
EQUIVALENT DEFINITION IN P.D. NO.
807 AND ADMINISTRATIVE
CODE OF
1987. Who are regular employees? The
Labor Code in Art. 280 (P.D. No. 492, as
amended) deems an employment regular
where the employee has been engaged to
perform activities which are usually necessary
or desirable in the usual business or trade of
the employer. No equivalent definition can be
found in P.D. No. 807 (promulgated on 6
October 1975, which superseded the Civil
Service Act of 1965 R.A. No. 2260) or in
the Administrative Code of 1987 (Executive
Order No. 292 promulgated on 25 July 1987).

DECISION

PADILLA, J p:
Pursuant to the policy of streamlining and
trimming the bureaucracy, Republic Act No.
6683 was approved on 2 December 1988
providing for benefits for early retirement and
voluntary separation from the government
service as well as for involuntary separation
due to reorganization. Deemed qualified to

avail of its benefits are those enumerated

in Sec. 2 of the Act, as follows:
"Sec. 2. Coverage. This
Act shall cover all appointive
officials and employees of the
National
Government,
including government-owned
or controlled corporations
with original charters, as well
as the personnel of all local
government
units.
The
benefits authorized under this
Act shall apply to all regular,
temporary,
casual
and
emergency
employees,
regardless of age, who have
rendered at least a total of
two (2) consecutive years of
government service as of the
date of separation. Uniformed
personnel of the Armed
Forces of the Philippines
including those of the PCINP are excluded from the
coverage of this Act."
Petitioner Lydia Chua believing that she is
qualified to avail of the benefits of the
program, filed an application on 30 January
1989 with respondent National Irrigation
Administration (NIA) which, however, denied
the same; instead, she was offered separation
benefits equivalent to one half (1/2) month
basic pay for every years of service
commencing from 1980. A recourse by
petitioner to the Civil Service Commission
yielded negative results. 1 Her letter for
reconsideration dated 25 April 1989 pleaded
thus:

xxx xxx xxx

"With due respect, I think the
interpretation
of
the
Honorable
Commissioner
of RA 6683 does not conform
with the beneficent purpose
of the law. The law merely
requires that a government
employee whether regular,
temporary, emergency, or
casual, should have two
consecutive
years
of
government service in order
to be entitled to its benefits. I
more
than
meet
the
requirement. Persons who are
not entitled are consultants,
experts and contractual(s). As
to the budget needed, the law
provides that the Department
of Budget and Management
will shoulder a certain
portion of the benefits to be
alloted
to
government
corporations.
Moreover,
personnel of these NIA
special projects are entitled to
the regular benefits, such
(sic) leaves, compulsory
retirement and the like. There
is no reason why we should
not be entitled to RA 6683.
xxx xxx xxx" 2
Denying the plea for reconsideration, the Civil
Service Commission (CSC) emphasized:
"xxx xxx xxx

We regret to inform you that your request

cannot be granted. The provision of Section
3.1 of Joint DBM-CSC Circular Letter No. 891 does not only require an applicant to have
two years of satisfactory service on the date of
separation/retirement but further requires said
applicant to be on a casual, emergency,
temporary or regular employment status as of
December 2, 1988, the date of enactment
of R.A. 6683. The law does not contemplate
contractual employees in the coverage. cdrep
Inasmuch as your employment as of
December 31, 1988, the date of your
separation from the service, is co-terminus
with the NIA project which is contractual in
nature, this Commission shall sustain its
original decision.
xxx xxx xxx" 3
In view of such denial, petitioner is before this
Court by way of a special civil action
for certiorari, insisting that she is entitled to
the benefits granted under Republic Act No.
6683. Her arguments:
"It is submitted that R.A.
6683, as well as Section 3.1
of the Joint DMB-CSC
Circular Letter No. 89-1
requires an applicant to be on
a
casual,
emergency,
temporary
or
regular
employment status. Likewise,
the provisions of Section 23
(sic) of the Joint DBM-CSC
Circular Letter No. 88-1,
implementing
guidelines

of R.A. No. 6683, provides

that:
'2.3 Excluded
from the benefits
under R.A.
No.
6683 are
the
following:
a) Experts and
Consultants hired by
agencies for a limited
period to perform
specific activities or
services
with
a
definite
expected
output:
i.e.
membership in Task
Force,
Part-Time,
Consultant/Employee
s.
b) Uniformed
personnel
of
the
Armed Forces of the
Philippines including
those of the Philippine
Constabulary
and
Integrated
National
Police (PC-INP).
c) Appointive
officials
and
employees who retire
or
elect
to
be
separated from the
service for optional
retirement
with
gratuity
under R.A.
No. 1616, 4968 or

with
pension
under R.A. No. 186,
as amended by R.A.
No. 6680 or P.D. No.
1146, as amended, or
vice-versa.
d) Officials
and employees who
retired
voluntarily
prior to the enactment
of this law and have
received
the
corresponding
benefits
of
that
retirement/separation.
dctai
e) Officials
and employees with
pending
cases
punishable
by
mandatory separation
from the service under
existing civil service
laws,
rules
and
regulations; provided
that if such officials
and employees apply
in writing within the
prescriptive period for
the availment of the
benefits
herein
authorized, shall be
allowed
only
if
acquitted or cleared of
all charges and their
application accepted
and approved by the

head
of
concerned.'

office

Based
on
the
above
exclusions, herein petitioner
does not belong to any one of
them. Ms. Chua is a full time
employee of NIA entitled to
all the regular benefits
provided for by the Civil
Service Commission. She
held a permanent status as
Personnel Assistant A, a
position which belongs to the
Administrative Service. . . . If
casuals
and
emergency
employees were given the
benefit of R.A. 6683 with
more reason that this
petitioner who was holding a
permanent status as Personnel
Assistant A and has rendered
almost 15 years of faithful,
continuous service in the
government
should
be
similarly rewarded by the
beneficient (sic) purpose of
the law." 4
The NIA and the Civil Service Commission
reiterate in their comment petitioner's
exclusion from the benefits of Republic Act
No. 6683, because:
1. Petitioner's employment is co-terminus with
the project per appointment papers kept by the
Administrative Service in the head office of
NIA (the service record was issued by the
Watershed Management and Erosion Control
Project (WMECP), Pantabangan, Nueva

Ecija). The project, funded by the World Bank,

was completed as of 31 December 1988, after
which petitioner's position became functus
officio.

5. The law applies only to employees of the

national government, government-owned or
controlled corporations with original charters
and local government units.

2. Petitioner is not a regular and career

employee of NIA her position is not
included in its regular plantilla. She belongs to
the non-career service (Sec. 6, P.D. No. 807)
which is inherently short-lived, temporary and
transient; on the other hand, retirement
presupposes employment for a long period.
The most that a non-career personnel can
expect upon the expiration of his employment
is financial assistance. Petitioner is not even
qualified to retire under the GSIS law.

Due to the impossibility of reconciling the

conflicting interpretations of the parties, the
Court is called upon to define the different
classes of employees in the public sector (i.e.
government civil servants).

3. Assuming arguendo that

petitioner's
appointment is permanent, security of tenure
is available only for the term of office (i.e.
duration of project).
4. The objective of Republic Act No. 6683 is
not really to grant separation or retirement
benefits but reorganization 5 to streamline
government functions. The application of the
law must be made consistent with the purpose
for which it was enacted. Thus, as the
expressed purpose of the law is to reorganize
the government, it will not have any
application to special projects such as the
WMECP which exists only for a short and
definite period. This being the nature of
special projects, there is no necessity for
offering its personnel early retirement benefits
just to induce voluntary separation as a step to
reorganization. In fact, there is even no need
of reorganizing the WMECP considering its
short and limited life-span. 6

Who are regular employees? The Labor Code

in Art. 280 (P.D. No. 492, as amended) deems
an employment regular where the employee
has been engaged to perform activities which
are usually necessary or desirable in the usual
business or trade of the employer. No
equivalent definition can be found in P.D. No.
807 (promulgated on 6 October 1975, which
superseded the Civil Service Act of 1965
R.A. No. 2260) or in the Administrative
Code of 1987 (Executive Order No.
292 promulgated on 25 July 1987). The Early
Retirement Law itself (Rep. Act No. 6683)
merely includes such class of employees
(regular employees) in its coverage, unmindful
that no such specie is employed in the public
sector.
The appointment status of government
employees in the career service is classified as
follows:
1. permanent one issued to a person who
has met the requirements of the position to
which appointment is made, in accordance
with the provisions of the Civil Service
Act and the Rules and Standards promulgated
in pursuance thereof; 7

2. temporary In the absence of appropriate

eligibles and it becomes necessary in the
public interest to fill a vacancy, a temporary
appointment shall be issued to a person who
meets all the requirements for the position to
which he is being appointed except the
appropriate civil service eligibility: Provided,
That such temporary appointment shall not
exceed twelve months, but the appointee may
be replaced sooner if a qualified civil service
eligible becomes available. 8
The Administrative
Code of
characterizes the Career Service as:
"(1) Open Career positions
for appointment to which
prior qualification in an
appropriate examination is
required;
(2) Closed Career positions
which are scientific, or highly
technical in nature; these
include the faculty and
academic staff of state
colleges and universities, and
scientific
and
technical
positions in scientific or
research institutions which
shall establish and maintain
their own merit systems;
(3) Positions in the Career
Executive Service; namely,
Undersecretary,
Assistant
Secretary, Bureau Director,
Assistant Bureau Director,
Regional Director, Assistant

1987

Regional Director, Chief of

Department Service and other
officers of equivalent rank as
may be identified by the
Career Executive Service
Board, all of whom are
appointed by the President.
(4) Career officers, other than
those in the Career Executive
Service, who are appointed
by the President, such as the
Foreign Service Officers in
the Department of Foreign
Affairs; LLpr
(5) Commission officers and
enlisted men of the Armed
Forces which shall maintain a
separate merit system;
(6) Personnel of governmentowned
or
controlled
corporations,
whether
performing governmental or
proprietary functions, who do
not fall under the non-career
service; and
(7) Permanent
laborers,
whether skilled, semi-skilled,
or unskilled." 9
The Non-Career Service, on the other hand, is
characterized by:
". . . (1) entrace on bases
other than those of the usual
tests of merit and fitness
utilized for the career service;
and (2) tenure which is

limited to a period specified

by law, or which is
coterminous with that of the
appointing
authority
or
subject to his pleasure, or
which is limited to the
duration of a particular
project for which purpose
employment was made."
Included in the non-career
service are:
1. elective officials and their
personal or confidential staff;
2. secretaries
and
other
officials of Cabinet rank who
hold their positions at the
pleasure of the President and
their personal confidential
staff(s);
3. Chairman and Members of
Commissions and boards
with fixed terms of office and
their personal or confidential
staff;
4. contractual personnel or
those whose employment in
the
government
is
in
accordance with a special
contract to undertake a
specific work or job requiring
special or technical skills not
available in the employing
agency, to be accomplished
within a specific period,
which in no case shall exceed
one year and performs or

accomplishes the specific

work or job, under his own
responsibility
with
a
minimum of direction and
supervision from the hiring
agency.
5. emergency and seasonal
personnel." 10
There is another
employee:

type of

non-career

"Casual where and when employment is

not permanent but occasional, unpredictable,
sporadic and brief in nature (Caro v. Rilloroza,
102 Phil. 70; Manuel v. P.P. Gocheco Lumber
Co., 96 Phil. 945)".
Consider petitioner's record of service:
"Service with the government
commenced on 2 December
1974 designated as a laborer
holding emergency status
with the NIA Upper
Pampanga River Project, R &
R
Division. 11 From
24
March 1975 to 31 August
1975, she was a research aide
with temporary status on the
same
project.
On
1
September 1975 to 31
December 1976, she was with
the NIA-FES III, R & R
Division, then on 1 January
1977 to 31 May 1980, she
was with NIA - UPR IIS
(Upper Pampanga River
Integrated Irrigation Systems)
DRD. On 1 June 1980, she

went to NIA-W.M.E.C.P.
(Watershed Management &
Erosion Control Project)
retaining
the
status
of temporary employee.
While with this project, her
designation was changed to
personnel assistant on 5
November 1981, starting 9
July
1982,
the
status
became permanent until the
completion of the project on
31 December 1988. The
appointment
paper 12 attached to the
OSG's comment lists her
status as co-terminus with the
Project."
The employment status of personnel hired
under foreign assisted projects is
considered co-terminous, that is, they are
considered employees for the duration of the
project or until the completion or cessation of
said project (CSC Memorandum Circular No.
39, S. 1990, 27 June 1990).
Republic Act No. 6683 seeks to cover and
benefits regular, temporary, casual and emerg
ency employees who have rendered at least a
total of two (2) consecutive years of
government service.
Resolution No. 87-104 of the CSC, 21 April
1987, provides:
"WHEREAS,
pursuant
to Executive
Order
No.
966 dated June 22, 1984, the
Civil Service Commission is

charged with the function of

determining
creditable
services for retiring officers
and employees of the national
government;
WHEREAS, Section 4 (b) of
the same Executive Order
No. 966 provides that all
previous services by an
officer/employee pursuant to
a duly approved appointment
to a position in the Civil
Service
are
considered
creditable services, while
Section 6 (a) thereof states
that
services
rendered
on contractual, emergency or
casual status
are
noncreditable services;
WHEREAS, there is a need
to clarify the aforesaid
provisions inasmuch as some
contractual, emergency or
casual
employment
are
covered by contracts or
appointments duly approved
by the Commission.
NOW,
therefore,
the
Commission resolved that
services
rendered
on
contractual, emergency or
casual status, irrespective of
the mode or manner of
payment therefor shall be
considered as creditable for
retirement purposes subject to

the following conditions:

(underscoring provided).
'1. These services are
supported by
approved
appointments,
official
records and/or
other
competent
evidence.
Parties/agencie
s
concerned
shall submit
the necessary
proof of said
services;
2. Said services are on
full time basis
and rendered
prior to June
22, 1984, the
effectivity date
of Executive
Order
No.
966; and
3. The services for the
three (3) years
period prior to
retirement are
continuous
and fulfill the
service
requirement
for
retirement."

What substantial differences exist, if any,

between casual, emergency, seasonal, project,
co-terminous or contractual personnel? All are
tenurial employees with no fixed term, noncareer, and temporary. The 12 May 1989 CSC
letter of denial 13 characterized herein
petitioner's employment as co-terminous with
the NIA
project which
in
turn
was contractual in nature. The OSG says
petitioner's status is co-terminous with the
Project. CSCMemorandum Circular No. 11,
series of 1991 (5 April 1991) characterizes the
status of a co-terminous employee
"(3) Co-terminous
status shall be issued to a
person whose entrance in the
service is characterized by
confidentiality
by
the
appointing authority or that
which is subject to his
pleasure or co-existent with
his tenure.
The foregoing status (coterminous) may be further
classified into the following:
'a) coterminous with the
project when the
appointment is coexistent with the
duration
of
a
particular project for
which
purpose
employment
was
made or subject to the
availability of funds
for the same;

b) coterminous with the

appointing
authority
when
appointment is coexistent with the
tenure
of
the
appointing authority.
c) coterminous with the
incumbent when
appointment is coexistent with the
appointee, in that after
the
resignation,
separation
or
termination of the
services
of
the
incumbent
the
position shall be
deemed automatically
abolished; and
d) coterminous with a
specific period, e.g.
'co-terminous for a
period of 3 years'
the appointment is for
a specific period and
upon
expiration
thereof, the position is
deemed abolished.'
It is stressed, however, that in
the last two classification (c)
and (d), what is termed coterminous is the position, and
not the appointee-employee.

Further, in (c) the security of

tenure of the appointee is
guaranteed
during
his
incumbency; in (d) the
security of tenure is limited to
a specific period."
A co-terminous employee is a non-career civil
servant, like casual and emergency employees.
We see no solid reason why the latter are
extended benefits under the Early Retirement
Law but the former are not. It will be noted
that Rep. Act No. 6683 expressly extends its
benefits
for
early
retirement
to regular, temporary, casual and emergency e
mployees. But specifically excluded from the
benefits are uniformed personnel of the AFP
including those of the PC-INP. It can be
argued that, expressio unius est exclusio
alterius. The legislature would not have made
a specific enumeration in a statute had not the
intention been to restrict its meaning and
confine its terms and benefits to those
expressly mentioned 14 or casus omissus pro
omisso habendus est A person, object or
thing omitted from an enumeration must be
held to have been omitted intentionally. 15 Yet
adherence to these legal maxims can result in
incongruities and in a violation of the equal
protection clause of the Constitution.
The case of Fegurin, et al. v. NLRC, et al., 16
comes to mind where, workers belonging to a
work pool, hired and re-hired continuously
from one project to another were considered
non-project-regular and permanent employees.
Petitioner Lydia Chua was hired and re-hired
in four (4) successive projects during a span of
fifteen (15) years. Although no proof of the

existence of a work pool can be assumed, her

service record cannot be disregarded.
Art.
III,
Sec.
1
of
the
1987 Constitution guarantees: "No person
shall be deprived of life, liberty, or property
without due process of law, nor shall any
person be denied the equal protection of the
laws."
". . . In Felwa vs. Salas, L26511, Oct. 29, 1966, We
ruled that the equal protection
clause applies only to persons
or things identically situated
and does not bar a reasonable
classification of the subject of
legislation,
and
a
classification is reasonable
where (1) it is based on
substantial distinctions which
make real differences; (2)
these are germane to the
purpose of the law; (3) the
classification applies not only
to present conditions but also
to future conditions which are
substantially identical to
those of the present; (4) the
classification applies only to
those who belong to the same
class." 17
Applying the criteria set forth above, the Early
Retirement Law would violate the equal
protection clause were we to sustain
respondents' submission that the benefits of
said law are to be denied a class of

government employees who are similarly

situated as those covered by said law. The
maxim of Expressio unius est exclusio
alterius should not be the applicable maxim in
this case but the doctrine of necessary
implication which holds that:
"No statute can be enacted
that can provide all the details
involved in its application.
There is always an omission
that may not meet a particular
situation. What is thought, at
the time of enactment, to be
an all-embracing legislation
may be inadequate to provide
for the unfolding events of
the future. So-called gaps in
the law develop as the law is
enforced. One of the rules of
statutory construction used to
fill in the gap is the doctrine
of necessary implication. The
doctrine states that what is
implied in a statute is as
much a part thereof as that
which is expressed. Every
statute is understood, by
implication, to contain all
such provisions as may be
necessary to effectuate its
object and purpose, or to
make
effective
rights,
powers,
privileges
or
jurisdiction which it grants,
including all such collateral
and subsidiary consequences
as may be fairly and logically
inferred from its terms. Ex

necessitate legis. And every

statutory grant of power, right
or privilege is deemed to
include all incidental power,
right or privilege. This is so
because the greater includes
the lesser, expressed in the
maxim, in eo plus sit, simper
inest et minus." 18
During
the
sponsorship
speech
of
Congressman Dragon (re: Early Retirement
Law), in response to Congressman Dimaporo's
interpellation on coverage of state university
employees who are extended appointments for
one (1) year, renewable for two (2) or three (3)
years, 19 he explained:
"This Bill covers only those
who would like to go on early
retirement and voluntary
separation. It is irrespective
of the actual status or nature
of the appointment one
received, but if he opts to
retire under this, then he is
covered."
It will be noted that, presently pending in
Congress, is House Bill No. 33399 (a proposal
to extend the scope of the Early Retirement
Law). Its wording supports the submission
that Rep. Act No. 6683 indeed overlooked a
qualified group of civil servants, Sec. 3 of said
House bill, on coverage of early retirement,
would provide:
"Sec. 3. Coverage. It will
cover all employees of the
national
government,

including government-owned
or controlled corporations, as
well as the personnel of all
local government units. The
benefits authorized under this
Act
shall
apply
to
all regular, temporary, casua
l, emergency and contractual
employees, regardless of age,
who have rendered at least a
total of two (2) consecutive
years government service as
of the date of separation. The
term 'contractual employees'
as used in this Act does not
include
experts
and
consultants hired by agencies
for a limited period to
perform specific activities or
services
with
definite
expected output.
"Uniformed personnel of the
Armed
Forces
of
the
Philippines, including those
of the PC-INP are excluded
from the coverage of this
Act." (emphasis supplied).
The objective of the Early Retirement or
Voluntary Separation Law is to trim the
bureaucracy, hence, vacated positions are
deemed abolished upon early/voluntary
retirement of their occupants. Will the
inclusion of co-terminous personnel (like the
petitioner) defeat such objective? In their case,
upon termination of the project and separation
of the project personnel from the service, the
term of employment is considered expired, the
officefunctus officio. Casual, temporary and

contractual personnel serve for shorter

periods, and yet, they only have to establish
two (2) years of continuous service to qualify.
This, incidentally, negates the OSG's argument
that co-terminous or project employment is
inherently
short-lived,
temporary
and
transient, whereas, retirement presupposes
employment for a long period. Here, violation
of the equal protection clause of
the Constitution becomes glaring because
casuals are not even in the plantilla, and yet,
they are entitled to the benefits of early
retirement. How can the objective of the Early
Retirement Law of trimming the bureaucracy
be achieved by granting early retirement
benefits to a group of employees (casuals)
without plantilla positions? There would, in
such a case, be no abolition of permanent
positions or streamlining of functions; it
would merely be a removal of excess
personnel; but the positions remain, and future
appointments can be made thereto.
Co-terminous or project personnel, on the
other hand, who have rendered years of
continuous service should be included in the
coverage of the Early Retirement Law, as long
as they file their application prior to the
expiration of their term, and as long as they
comply with CSC regulations promulgated for
such
purpose.
In
this
connection, Memorandum Circular No. 14,
Series
of
1990
(5
March
1990)
implementing Rep. Act No. 6850, 20requires,
as a condition to qualify for the grant of
eligibility, an aggregate or total of seven (7)
years of government service which need not
be continuous, in the career or non-career
service,

whether appointive, elective,casual, emergenc

y, seasonal, contractual or co-terminous,
including military and police service, as
evaluated and confirmed by the Civil Service
Commission. 21 A similar regulation should
be promulgated for the inclusion inRep. Act
No. 6683 of co-terminous personnel who
survive the test of time. This would be in
keeping with the coverage of "all social
legislations enacted to promote the physical
and mental well-being of public servants." 22
After all, co-terminous personnel are also
obligated to the government for GSIS
contributions, medicare and income tax
payments, with the general disadvantage of
transience.
In fine, the Court believes, and so holds, that
the denial by the respondents NIA and CSC of
petitioner's application for early retirement
benefits under Rep. Act No. 6683 is
unreasonable, unjustified, and oppressive, as
petitioner had filed an application for
voluntary retirement within a reasonable
period and she is entitled to the benefits of
said law. While the application was filed after
expiration of her term, we can give allowance
for the fact that she originally filed the
application on her own without the assistance
of counsel. In the interest of substantial
justice, her application must be granted; after
all she served the government not only for two
(2) years the minimum requirement under
the law but for almost fifteen (15) years in
four (4) successive governmental projects.
WHEREFORE, the petition is GRANTED.
Let this case be remanded to the CSC-NIA for
a favorable disposition of petitioner's

application for early retirement benefits

under Rep. Act No. 6683, in accordance with
the pronouncements in this decision.
SO ORDERED.
||| (Chua v. Civil Service Commission, G.R.
No. 88979, [February 7, 1992])

[G.R. No. L-37251. August 31, 1981.]

CITY OF MANILA and CITY
TREASURER, petitioners-appellants,
vs. JUDGE AMADOR E. GOMEZ
of the Court of First Instance of
Manila and ESSO PHILIPPINES,
INC., respondents-appellees.
SYNOPSIS
Esso, Philippines, paid under protest its
additional one-half percent realty tax for the
third quarter of 1972 and filed a complaint in
the Court of First Instance of Manila for the
recovery of the same, contending that Tax
Ordinance No. 7125 of the City of Manila
imposing said additional 1/2% tax pursuant to
the 1949 Revised Charter of Manila which
fixed the realty tax at one and a half percent
and to the 1968 Special Education Fund Law
which imposed an annual additional tax of
one per centum but definitely fixing three
percent as the maximum real property tax, of

which one percent would accrue to the Special

Education Fund, is void, because it is not
authorized by the City Charter nor by any law
and that the maximum tax fixed in the Special
Education Fund Law refers to a contingency
and cannot be construed as an authority to
impose an additional realty tax beyond the 1%
fixed by said law. The trial court declared the
tax ordinance void and ordered the City
Treasurer of Manila to refund to Esso said tax.
On review by certiorari, the Supreme Court,
ruled that the Special Education Fund Law, as
confirmed by the Real Property Tax Code, in
prescribing a total realty tax of three percent
impliedly authorizes the augmentation of onehalf percent of the pre-existing one and onehalf percent realty tax.
Decision of the trial court reversed.
SYLLABUS
1. ADMINISTRATIVE LAW; TAXATION;
REAL
PROPERTY
TAX;
REVISED
CHARTER OF MANILA AND SPECIAL
EDUCATION FUND LAW; AMOUNT
FIXED THEREUNDER. Section 64 of the
Revised Charter of Manila, Republic Act No.
409, which took effect on June 18, 1949, fixes
the annual realty tax as one and one-half
percent (1-%). On the other hand, section 4
of the Special Education Fund Law, Republic
Act No. 5447, which took effect on January 1,
1969, imposed, "an annual additional tax of
one per centum on the assessed value of real
property in addition to the real property tax
regularly levied thereon under existing laws"

but "the total real property tax shall not exceed

a maximum of three per centum."
2. ID.;
ID.;
ID.;
ID.;
RELATION
TO PRESIDENTIAL DECREE NO. 464,
OR REAL PROPERTY TAX CODE.
Section 39(2) of the Real Property Tax
Code, Presidential Decree No. 464, which
took effect on June 1, 1974, provides that a
city council may, by ordinance, impose a
realty tax "of not less than one-half of one
percent but not more than two percent of the
assessed value of real property." Section 41 of
the said Code reaffirms the one percent tax on
real property for the Special Education Fund
in addition to the basic two percent realty tax.
3. STATUTORY
CONSTRUCTION;
DOCTRINE
OF
IMPLICATION;
DEFINITION. The doctrine of implications
means that "that which is plainly implied in
the language of a statute is as much a part of it
as that which is expressed" (In re McCulloch
Dick, 35 Phil. 41, 45, 50; 82 C.J.S. 632; 73
Am Jur 2nd 404). cdasia
4. ID.; ID.; REAL PROPERTY TAX LAWS
CONSTRUED; TAX ORDINANCE NO.
7125 VALID THEREUNDER; CASE AT
BAR. While the 1949 Revised Charter of
Manila fixed the realty tax at one and a half
percent, on the other hand, the 1968 Special
Education Fund Law definitively fixed three
percent as the maximum real property tax of
which one percent would accrue to the Special
Education Fund, the obvious implication is
that an additional one-half percent tax could
be imposed by municipal corporations.
Inferentially, that law fixed at two percent the
realty tax that would accrue to a city or

municipality and the doctrine of implications

in statutory construction sustains the City of
Manila's contention that the additional onehalf percent realty tax imposed by Ordinance
No. 7125 effective beginning the third quarter
of 1972 is sanctioned by the provision in
section 4 of the Special Education Fund Law
that "the total real property tax shall not
exceed a maximum of three per centum." The
fact that the 1974 Real Property Tax
Code specifically fixes the real property tax
of two percent confirms the prior intention of
the law maker to impose two percent as the
realty tax proper, which was also the avowed
intention of the questioned ordinance.
5. ID.; ID.; ID.; IMPOSITION OF AN
ADDITIONAL
ONE-HALE
PERCENT
REALTY TAX; AUTHORITY UNDER THE
SPECIAL EDUCATION FUND LAW, AN
UNAVOIDABLE INFERENCE. Although
it appears to be a specious or reasonable
contention that the Special Education Fund
Law refers to a contingency where the
application of the additional one percent realty
tax would have the effect of raising the total
realty tax to more than three percent and that it
cannot be construed as an authority to impose
an additional realty tax beyond the one percent
fixed by the said law, but the fact remains that
the city charter fixed the realty tax at 1-1/2%
and the later law, the Special Education Fund
Law provides for three percent as the
maximum realty tax of which one percent
would be earmarked for the education fund,
the unavoidable inference is that the later law
authorized the imposition of an additional onehalf percent realty tax since the contingency
referred to by the complaining taxpayer would

not arise in the City of Manila. As repeatedly

observed, section 4 of the Special Education
Fund Law, as confirmed by the Real Property
Tax Code in prescribing a total realty tax of
three percent impliedly authorizes the
augmentation by one-half percent of the preexisting one and one-half percent realty tax.
6. CONSTITUTIONAL LAW; MUNICIPAL
CORPORATIONS; POWER TO IMPOSE A
REALTY TAX SHOULD BE EXPRESSED;
PRINCIPLE NOT APPLICABLE TO CASE
AT BAR. While it is true, that the power of
a municipal corporation to levy a tax should
be expressly granted and should not be merely
inferred, the power to impose a realty tax is
not controverted in this case but what is
disputed is the amount thereof , whether one
and one-half percent only or two percent. (See
Sec. 2 of Republic Act No. 2264)

DECISION

AQUINO, J p:
This case is about the legality of the additional
one-half percent (1/2%) realty tax imposed by
the City of Manila.
Section 64 of the Revised Charter of
Manila, Republic Act No. 409, which took
effect on June 18, 1949, fixes the annual realty
tax at one and one-half percent (1-1/2%). prLL
On the other hand, section 4 of the Special
Education Fund Law, Republic Act No. 5447,
which took effect on January 1, 1969, imposed

"an annual additional tax of one per centum on

the assessed value of real property in addition
to the real property tax regularly levied
thereon under existing laws" but "the total real
property tax shall not exceed a maximum of
three per centum."
That maximum limit gave the municipal board
of Manila the idea of fixing the realty tax
at three percent. So, by means of Ordinance
No. 7125, approved by the city mayor on
December 26, 1971 and effective beginning
the third quarter of 1972, the board imposed
an additional one-half percent realty tax. The
ordinance reads:
"SECTION 1. An additional
annual realty tax of one-half
percent (1/2%), or in short a
total of three percent (3%)
realty tax (1-1/2% pursuant to
the Revised Charter of
Manila; 1% per Republic Act
No. 5447; and 1/2% per this
Ordinance) on the assessed
value . . . is hereby levied and
imposed."
Esso Philippines, Inc. paid under protest the
sum of P16,092.69 as additional one-half
percent realty tax for the third quarter of 1972
on its land and machineries located in Manila.
On November 9, 1972, Esso filed a complaint
in the Court of First Instance of Manila for the
recovery of the said amount. It contended that
the additional one-half percent tax is void
because it is not authorized by the city charter
nor by any law (Civil Case No. 88827).

After hearing, the trial court declared the tax

ordinance void and ordered the city treasurer
of Manila to refund to Esso the said tax. The
City of Manila and its treasurer appealed to
this Court under Republic Act No. 5440(which
superseded Rule 42 of the Rules of Court).
The only issue is the validity of the tax
ordinance or the legality of the additional onehalf percent realty tax. LLpr
The petitioners in their manifestation of March
17, 1981 averred that the said tax ordinance is
still in force; that Ordinance No. 7566, which
was enacted on September 10, 1974, imposed
a two percent tax on commercial real
properties (like the real properties of Esso)
and that the two percent tax plus the one
percent tax under the Special Education Fund
Law gives a total of three percent realty tax on
commercial properties.
Esso Philippines, Inc., now Petrophil
Corporation, in its manifestation of March 2,
1981, revealed that up to this time it has been
paying the additional one-half percent tax and
that from 1975 to 1980 it paid the total sum of
P4,206,240.71 as three percent tax on its real
properties.
In this connection, it is relevant to note that
section 39(2) of the Real Property Tax
Code, Presidential Decree No. 464, which
took effect on June 1, 1974, provides that a
city council may, by ordinance, impose a
realty tax "of not less than one-half of one
percent but not more than two percent of the
assessed value of real property".
Section 41 of the said Code reaffirms the one
percent tax on real property for the Special

Education Fund in addition to the basic two

percent realty tax.
So, there is no question now that the
additional one-half percent realty tax is valid
under the Real Property Tax Code. What is in
controversy is the legality of the additional
one-half percent realty tax for the two-year
period from the third quarter of 1972 up to the
second quarter of 1974. cdphil
We hold that the doctrine of implications in
statutory construction sustains the City of
Manila's contention that the additional onehalf percent realty tax is sanctioned by the
provision in section 4 of the Special Education
Fund Law that "the total real property tax shall
not exceed a maximum of three per centum."
The doctrine of implications means that "
which is plainly implied in the language of a
statute is as much a part of it as that which is
expressed" (In re McCulloch Dick, 38 Phil.
41, 45, 90; 82 C.J.S. 632; 73 Am Jur 2nd 404).
While the 1949 Revised Charter of Manila
fixed the realty tax at one and a half percent,
on the other hand, the 1968 Special Education
Fund Law definitively fixed three percent as
the maximum real property tax of which one
percent would accrue to the Special Education
Fund.
The obvious implication is that an additional
one-half percent tax could be imposed by
municipal corporations. Inferentially, that law
fixed at two percent the realty tax that would
accrue to a city or municipality.

And the fact that the 1974 Real Property Tax

Code specifically fixes the real property tax
at two percent confirms the prior intention of
the lawmaker to impose two percent as the
realty tax proper. That was also the avowed
intention of the questioned ordinance.
In invalidating the ordinance, the trial court
upheld the view of Esso Philippines, Inc. that
the Special Education Fund Law refers to a
contingency where the application of the
additional one percent realty tax would have
the effect of raising the total realty tax to more
than three percent and that it cannot be
construed as an authority to impose an
additional realty tax beyond the one percent
fixed by the said law.
At first glance, that appears to be a specious or
reasonable contention. But the fact remains
that the city charter fixed the realty tax at 11/2% and the later law, the Special Education
Fund Law, provides for three percent as the
maximum realty tax of which one percent
would be earmarked for the education
fund. cdphil
The unavoidable inference is that the later law
authorized the imposition of an additional onehalf percent realty tax since the contingency
referred to by the complaining taxpayer would
not arise in the City of Manila.
It is true, as contended by the taxpayer, that
the power of a municipal corporation to levy a
tax should be expressly granted and should not
be merely inferred. But in this case, the power
to impose a realty tax is not controverted.
What is disputed is the amount thereof,

whether one and one half percent only or two

percent. (See sec. 2 of Rep. Act No. 2264.).
As repeatedly observed, section 4 of the
Special Education Fund Law, as confirmed by
the Real Property Tax Code, in prescribing a
total realty tax of three percent impliedly
authorizes the augmentation by one-half
percent of the pre-existing one and one-half
percent realty tax.
WHEREFORE, the decision of the trial court
is reversed and set aside. The complaint of
Esso Philippines, Inc. for recovery of the
realty tax paid under protest is dismissed. cdll
No costs.
SO ORDERED.
||| (City of Manila v. Gomez, G.R. No. L37251, [August 31, 1981], 194 PHIL 90-97)
[G.R. No. L-14129. July 31, 1962.]
PEOPLE OF THE PHILIPPINES,
plaintiff-appellant, vs. GUILLERMO
MANANTAN, defendant-appellee.
SYLLABUS
1. ELECTIONEERING;
OFFICERS
PROHIBITED FROM ENGAGING IN
POLITICS; JUSTICES OF THE PEACE.
A justice of the peace is included among the
officers enjoined from active political
participation by Section 54 of the
Revised Election Code. There was no need of
including justices of the peace in the

enumeration in said Section 54 because the

Legislature had availed itself of the more
generic and broader term "judge."
2. ID.; ID.; TERM "JUDGE" CONSTRUED.
The term "judge" not modified by any
word or phrase, is intended to comprehend all
kinds of judges, like judges of the courts of
First Instance, judges of the courts of Agrarian
Relations, judges of the courts of Industrial
Relations, and justices of the peace.
3. STATUTORY CONSTRUCTION; RULE
OF
"CASUS
OMISUS"
WHEN
APPLICABLE. The rule of "casus omisus
pro omisso habendus est" can operate and
apply only if and when the omission has been
clearly established. In the case at bar, the
Legislature did not exclude or omit justices of
the peace from the enumeration of officers
precluded from engaging in partisan political
activities. Rather, they were merely called by
another term - "judge." The rule, therefore, has
no applicability to the instant case.
4. ID.; PENAL STATUTES; RUIN OF
STRICT CONSTRUCTION. The rule that
penal statutes are given strict construction is
not the only factor controlling the
interpretation of such laws, instead, the rule
merely serves as an additional, single factor to
be considered as an aid in determining the
meaning of penal laws. (3 Sutherland
Statutory Construction, p. 56). The court may
consider the spirit and reason of a statute, as in
this particular instance where a literal meaning
would lead to absurdity, contradiction,
injustice, or would defeat the clear purpose of
the lawmaker (Crawford Interpretation of
Laws, Sec. 78, p. 294).

5. ID.; ID.; RULE OF EXCLUSION.

Where a statute appears on its phase to limit
the operation of its provisions to particular
persons or things by enumerating them, but no
reason exist why other persons or things not so
enumerated should not have been included and
manifest injustice will follow by not so
including them, the maxim expresio unius est
exclusio, alterius, should not be invoked.
(Blevins vs. Mullally, 135 p. 307, 22 CAL. A
pp. 519).
6. DOUBLE JEOPARDY; FAILURE OF
DEFENDANT TO RAISE ISSUE; WAIVER
OF DEFENSE. As defendant neither raised
the issue of double jeopardy by way of
resisting the appeal of the state, nor argued in
his brief the said plea, he is deemed to have
waived this defense.

DECISION

REGALA, J p:
This is an appeal of the Solicitor General from
the order of the Court of First Instance of
Pangasinan dismissing the information against
the defendant.
The records show that the statement of the
case and of the facts, as recited in the brief of
plaintiff-appellant, is complete and accurate.
The same is, consequently, here adopted, to
wit:
"In an information filed by
the Provincial Fiscal of

Pangasinan in the Court of

First
Instance
of
that
Province,
defendant
Guillermo Manantan was
charged with a violation of
Section
54
of
the
Revised Election Code. A
preliminary
investigation
conducted by said court
resulted in the finding of a
probable cause that the crime
charged was committed by
the defendant. Thereafter, the
trial started upon defendant's
plea of not guilty, the defense
moved to dismiss the
information on the ground
that as justice of the peace,
the defendant is not one of
the officers enumerated in
Section
54
of
the
Revised Election Code. The
lower court denied the
motion to dismiss, holding
that a justice of the peace is
within the purview of Section
54. A second motion was
filed by defense counsel who
cited in support thereof the
decision of the Court of
Appeals in People vs.
Macaraeg, (C.A.-G.R. No.
15613-R, 54 Off. Gaz., pp.
1873-76) where it was held
that a justice of the peace is
excluded from the prohibition
of Section 54 of the
Revised Election
Code.
Acting on this second motion

to dismiss, the answer of the

prosecution, the reply of the
defense, and the opposition of
the prosecution, the lower
court
dismissed
the
information
against
the
accused upon the authority of
the ruling in the case cited by
the defense."
Both parties are submitting this case upon the
determination of this single question of law: Is
a justice of the peace included in the
prohibition of Section 54 of the
Revised Election Code?
Section 54 of the said Code reads:
"No justice, judge, fiscal,
treasurer, or assessor of any
province, no officer or
employee of the Army, no
member of the national,
provincial, city, municipal or
rural police force, and no
classified civil service officer
or employee shall aid any
candidate, or exert any
influence in any manner in
any election or take part
therein, except to vote, if
entitled thereto, or to preserve
public peace, if he is a peace
officer."
Defendant-appellee argues that a justice of the
peace is not comprehended among the officers
enumerated in Section 54 of the
Revised Election Code. He submits that the
aforecited section was taken from Section 449

of the Revised Administrative Code, which

provided the following:
"SEC.
449. Persons
prohibited from influencing
elections. No judge of the
First Instance, justice of the
peace, or treasurer, fiscal or
assessor of any province and
no officer or employee of the
Philippine Constabulary, or
any Bureau or employee of
the classified civil service,
shall aid any candidate or
exert influence in any manner
in any election or take part
therein
otherwise
than
exercising the right to vote."
When, therefore, Section 54 of the
Revised Election Code omitted the words
"justice of the peace," the omission
revealed the intention of the Legislature to
exclude justice of the peace from its
operation.
The above argument overlooks one
fundamental fact. It is to be noted that under
Section 449 of the Revised Administrative
Code, the word "judge" was modified or
qualified by the phrase "of First Instance,"
while
under
Section
54
of
the
Revised Election Code, no such modifications
exists. In other words, justices of the peace
were expressly included in Section 449 of the
Revised Administrative Code because the
kinds of judges therein were specified, i.e.,
judge of the First Instance and justice of the
peace. In Section 54, however, there was no
necessity anymore to include justice of the

peace in the enumeration because the

legislature had availed itself of the more
generic and broader term, "judge." It was a
term not modified by any word or phrase and
was intended to comprehend all kinds of
judges, like judges of the courts of First
Instance, judges of the courts of Agrarian
Relations, judges of the courts of Industrial
Relations, and justices of the peace.
It is a well known fact that a justice of the
peace is sometimes addressed as "judge" in
this jurisdiction. It is because a justice of the
peace is indeed a judge. A "judge" is a public
officer, who, by virtue of his office, is clothed
with judicial authority (U.S. vs. Clark 25 Fed.
Case. 441, 442). According to Bouvier, Law
Dictionary, "a judge is a public officer
lawfully appointed to decide litigated
questions according to law. In its most
extensive sense the term includes all officers
appointed to decide litigated questions while
acting in that capacity, including justice of the
peace, and even jurors, it is said, who are
judges of facts."
A review of the history of the
Revised Election Code will help to justify and
clarify the above conclusion.
The first election law in the Philippines
was Act No. 1582 enacted by the Philippine
Commission in 1907, and which was later
amended by Act Nos. 1669, 1709, 1726 and
1768. (Of these 4 amendments, however,
only Act No. 1709 has a relation to the
discussion of the instant case as shall be
shown later.) Act No. 1582, with its
subsequent 4 amendments were later on
incorporated in Chapter 18 of the

Administrative Code. Under the Philippine

Legislature, several amendments were made
through the passage of Act Nos. 2310, 3336
and 3387. (Again, of these last 3 amendments,
only Act No. 3387 has pertinence to the case
at bar as shall be seen later.) During the time
of the Commonwealth, the National Assembly
passed Commonwealth Act No. 233 and later
on enacted Commonwealth Act No. 357,
which was the law enforced until June 21,
1947, when the Revised Election Code was
approved. Included as its basic provisions are
the provisions of Commonwealth Acts Nos.
233, 357, 605, 666, 657. The present Code
was further amended by Republic Acts Nos.
599, 867, 2242 and again, during the session
of Congress in 1960, amended by Rep. Acts
Nos. 3036 and 3038. In the history of our
election law, the following should be noted:
Under Act 1582, Section 29, it was provided:
"No public officer shall offer
himself as a candidate for
elections, nor shall he be
eligible during the time that
he holds said public office to
election at any municipal,
provincial
or
Assembly
election, except for reelection
to the position which he may
be holding, and no judge of
the First Instance, justice of
the peace, provincial fiscal,
or officer or employee of the
Philippine Constabulary or of
the Bureau of Education shall
aid
any
candidate
or
influence in any manner or
take part in any municipal,

provincial, or Assembly
election under the penalty of
being deprived of his office
and being disqualified to hold
any public office whatsoever
for a term of 5 years:
Provided, however, that the
foregoing provisions shall not
be construed to deprive any
person otherwise qualified of
the right to vote at any
election. (Enacted January 9,
1907; Took effect on January
15, 1907.)
Then, in Act 1709, Sec. 6, it was likewise
provided:
". . . No judge of the First
Instance, justice of the peace,
provincial fiscal or officer or
employee of the Bureau of
Constabulary or of the
Bureau of Constabulary or of
the Bureau of Education shall
aid any candidate or influence
in any manner or take part in
any municipal, provincial or
Assembly election. Any
person
violating
the
provisions of this section
shall be deprived of his office
or employment and shall be
disqualified to hold any
public office or employment
whatever for a term of 5
years. Provided, however,
that the foregoing provisions

shall not be construed to

deprive any person otherwise
qualified or the right to vote
at any election. (Enacted on
August 31, 1907; Took effect
on September 15, 1907.)
Again, when the existing election laws were
incorporated in the Administrative Code on
March 10, 1917, the provisions in question
read:
"SEC.
449. Persons
prohibited from influencing
elections. No judge of the
First Instance, justice of the
peace, or treasurer, fiscal or
assessor of any province and
no officer or employee of the
Philippine Constabulary, or
any Bureau or employee of
the classified civil service,
shall aid any candidate or
exert influence in any manner
in any election or take part
therein
otherwise
than
exercising the right to vote.
(Emphasis supplied)
After the Administrative Code, the next
pertinent legislation was Act No. 3387. This
Act reads:
"SEC. 2636. Officers and
employees meddling with the
election. Any judge of the
First Instance, justice of the
peace, treasurer, fiscal or
assessor of any province, any
officer or employee of the

Philippine Constabulary or of
the
police
of
any
municipality, or any officer or
employee of any Bureau or
the classified civil service,
who aids any candidate or
violated in any manner the
provisions of this section or
takes part in any election
otherwise by exercising the
right to vote, shall be
punished by a fine of not less
than P100.00 nor more than
P2,000.00,
or
by
imprisonment for not less
than 2 months nor more than
2 years, and in all cases by
disqualification from public
office and deprivation of the
right of suffrage for a period
of 5 years." (Approved,
December
3,
1927.)
(Emphasis supplied.)
Subsequently, however, Commonwealth Act
No. 357 was enacted on August 22, 1938. This
law provided in Section 48:
"SEC. 48. Active intervention
of public officers and
employees. No justice,
judge, fiscal, treasurer or
assessor of any province, no
officer or employee of the
Army, the Constabulary of
the National, provincial,
municipal or rural police, and
no classified civil service
officer or employee shall aid
any candidate, nor exert

influence in any manner in

any election nor take part
therein, except to vote, if
entitled thereto, or to preserve
public peace, if he is a peace
officer."
The last law was the legislation from which
Section 54 of the Revised Election Code was
taken.
It will thus be observed from the foregoing
narration of the legislative development or
history of Section 54 of the Revised Election
Code that the first omission of the word
"justice of the peace" was effected in Section
48 of Commonwealth Act No. 357 and not in
the present Code as averred by defendantappellee. Note carefully, however, that in the
two instances when the words "justice of the
peace" were omitted (in Com. Act No.
357 and Rep.Act No. 180), the word "judge"
which preceded in the enumeration did not
carry the qualification "of the First Instance."
In other words, whenever the word "judge"
was qualified by the phrase "of the First
Instance," the words "justice of the peace"
would follow; however, if the law simply said
"judge," the words "justice of the peace" were
omitted.
The above-mentioned pattern of congressional
phraseology would seem to justify the
conclusion that when the legislature omitted
the words "justice of the peace" in Rep. Act
No. 180, it did not intend to exempt the said
officer from its operation. Rather, it had
considered the said officer as already
comprehended in the broader term "judge".

It is unfortunate and regrettable that the last

World War had destroyed congressional
records which might have offered some
explanation of the discussion of Com. Act No.
357, which legislation, as indicated above, had
eliminated for the first time the word "justice
of the peace." Having been completely
destroyed, all efforts to seek deeper and
additional clarifications form these records
proved futile. Nevertheless, the conclusions
drawn from the historical background of
Rep. Act No. 180 is sufficiently borne out by
reason and equity.
Defendant further argues that he cannot
possibly be among the officers enumerated in
Section 54 inasmuch as under the said section,
the word "judge" is modified or qualified by
the phrase "of any province." The last
mentioned phrase, defendant submits, cannot
then refer to a justice of the peace since the
latter is not an officer of a province but of a
municipality.
Defendant's argument in that respect is too
strained. If it is true that the phrase "of any
province" necessarily removes justices of the
peace from the enumeration for the reason that
they are municipal and not provincial officials,
then the same thing may be said of the Justices
of the Supreme Court and of the Court of
Appeals. They are national officials. Yet, can
there be any doubt that Justices of the
Supreme Court and of the Court of Appeals
are not included in the prohibition? The more
sensible and logical interpretation of the said
phrase is that it qualifies fiscals, treasurers and
assessors who are generally known as
provincial officers.

The rule of "casus omisus pro omisso

habendus est" is likewise invoked by the
defendant-appellee. Under the said rule, a
person, object or thing omitted from an
enumeration must be held to have been
omitted intentionally. If that rule is applicable
to the present, then indeed, justices of the
peace must be held to have been intentionally
and deliberately exempted from the operation
of Section 54 of the Revised Election Code.
The rule has no applicability to the case at bar.
The maxim "casus omisus" can operate and
apply only if and when the omission has been
clearly established. In the case under
consideration, it has already been shown that
the legislature did not exclude or omit justices
of the peace from the enumeration of officers
precluded from engaging in partisan political
activities. Rather, they were merely called by
another term. In the new law, or Section 54 of
the Revised Election Code, justices of the
peace were just called "judges."
In insisting on the application of the rule of
"casus omisus" to this case, defendantappellee cites authorities to the effect that the
said rule, being restrictive in nature, has more
particular application to statutes that should be
strictly construed. It is pointed out that Section
54 must be strictly construed against the
government since proceedings under it are
criminal in nature and the jurisprudence is
settled that penal statutes should be strictly
interpreted against the state.
Amplifying on the above argument regarding
strict interpretation of penal statutes,
defendant asserts that the spirit of fair play and
due process demand such strict construction in

order to give "Fair warning of what the law

intends to do, if a certain line is passed, in
language that the common world will
understand." (Justice Holmes, in McBoyle vs.
U.S. 283, U.S. 25, L. Ed, 816)
The application of the rule of "casus omisus"
does not proceed from the mere fact that a
case is criminal in nature, but rather from a
reasonable certainty that a particular person,
object or thing has been omitted from a
legislative enumeration. In the present case,
and for reasons already mentioned, there has
been no such omission. There has only been a
substitution of terms.
The rule that penal statutes are given a strict
construction is not the only factor controlling
the interpretation of such laws; instead, the
rule merely serves as an additional, single
factor to be considered as an aid in
determining the meaning of penal laws. This
has been recognized time and again by
decisions of various courts. (3 Sutherland,
Statutory Construction, p. 56.) Thus, cases
will frequently be found enunciating the
principle that the intent of the legislature will
govern (U.S. vs. Corbet, 215, U.S. 233). It is
to be noted that a strict construction should not
be permitted to defeat the policy and purposes
of the statute (Ash Sheep Co. vs. U.S. 252
U.S. 159). The court may consider the spirit
and reason of a statute, as in this particular
instance, where a literal meaning would lead
to absurdity, contradiction, injustice, or would
defeat the clear purpose of the law makers
(Crawford, Interpretation of Laws, Sec. 78, p.
294). A Federal District court in the U.S. has
well said:

"The strict construction of a

criminal statute does not
mean such construction of it
as to deprive it of the
meaning intended. Penal
statutes must be construed in
the
sense
which
best
harmonizes with their intent
and purpose." (U.S. vs.
Betteridge, 43 F. Supp. 53,
56, cited in 3 Sutherland
Statutory Construction 56.)
As well stated by the Supreme Court of the
United States, the language of criminal
statutes, frequently, has been narrowed where
the letter includes situations inconsistent with
the legislative plan (U.S. vs. Katz, 271 U.S.
354; See also Ernest Brunchan, Interpretation
of the Written Law [1915] 25 Yale L.J. 129.)
Another reason in support of the conclusion
reached herein is the fact that the purpose of
the statute is to enlarge the officers within its
purview. Justices of the Supreme Court, the
Court of Appeals, and various judges, such as
the judges of the Court of Industrial Relations,
judges of the Court of Agrarian Relations, etc.,
who were not included in the prohibition
under the old statute, are now within its
encompass. If such were the evident purpose,
can the Legislature intend to eliminate the
justice of the peace within its orbit? Certainly
not, this point is fully explained in the brief of
the Solicitor General, to wit:
"On the other hand, when the
legislature eliminated the

phrases "Judge of the First

Instance" and "justice of the
peace", found in Section 449
of the Revised Administrative
Code, and used "judge" in
lieu thereof, the obvious
intention was to include in
the scope of the term not just
one class of judge but all
judges, whether of first
instance, justices of the peace
or special courts, such as
judges of the Court of
Industrial Relations." . . .
"The weakest link in our
judicial system is the justice
of the peace court, and to so
construe the law as to allow a
judge thereof to engage in
partisan political activities
would weaken rather than
strengthen the judiciary. On
the other hand, there are
cogent reasons found in the
Revised Election Code itself
why justices of the peace
should be prohibited from
electioneering. Along with
justices of the appellate
courts and judges of the
Courts of First Instance, they
are given authority and
jurisdiction over certain
election cases (See Secs. 103,
104, 117-123). Justices of the
peace are authorized to hear
and decide inclusion and
exclusion cases and if they

are permitted to campaign for

candidates for an elective
office the impartiality of their
decisions in election cases
would be open to serious
doubt. We do not believe that
the legislature had, in Section
54 of the Revised Election
Code, intended to create such
an unfortunate situation." (pp.
7-8, Appellant's Brief.)
Another factor which fortifies the conclusion
reached herein is the fact that even the
administrative or executive department has
regarded justices of the peace within the
purview of Section 54 of the Revised Election
Code.
In Traquilino O. Calo, Jr. vs. The Executive
Secretary, the Secretary of Justice, etc. (G. R.
No. L-12601), this Court did not give due
course to the petition for certiorari and
prohibition with preliminary injunction against
the respondents, for not setting aside, among
others, Administrative Order No. 237, dated
March 31, 1957, of the President of the
Philippines, dismissing the petitioner as justice
of the peace of Carmen, Agusan. It is worthy
of note that one of the causes of the separation
of the petitioner was the fact that he was found
guilty in engaging in electioneering, contrary
to the provisions of the Election Code.
Defendant-appellee calls the attention of this
Court to House Bill No. 2676, which was filed
on January 25, 1955. In that proposed
legislation, under Section 56, justices of the
peace are already expressly included among
the officers enjoined from active political

participation. The argument is that with the

filing of the said House Bill, Congress
impliedly acknowledged that existing laws do
not prohibit justices of the peace from partisan
political activities.
The argument is unacceptable. To begin with,
House Bill No. 2676 was a proposed
amendment to Republic Act No. 180 as a
whole and not merely to section 54 of said
Rep. Act No. 180. In other words, House Bill
No. 2676 was a proposed re-codification of
the existing election laws at the time that it
was filed. Besides, the proposed amendment,
until it has become a law, cannot be
considered to contain or manifest any
legislative intent. If the motives, opinions, and
the reasons expressed by the individual
members of the legislature, even in debates,
cannot be properly taken into consideration in
ascertaining the meaning of a statute
(Crawford, Statutory Construction, Sec. 213,
pp. 375-376), fortiori what weight can we give
to mere draft of a bill.
On law, reason and public policy, defendantappellee's contention that justice of the peace
are not covered by the injunction of Section 54
must be rejected. To accept it is to render
ineffective a policy so clearly and
emphatically laid down by the legislature.
Our law-making body has consistently
prohibited justices of the peace from
participating in partisan politics. They were
prohibited under the old Election Law since
1907 (Act No. 1582 and Act No. 1709).
Likewise, they were so enjoined by the
Revised Administrative Code. Another law
which expressed the prohibition to them

was Act No. 3387, and later, Com. Act No.

357.
Lastly, it is observed that both the Court of
Appeals and the trial court applied the rule of
"expressio unius, est exclusio alterius" in
arriving at the conclusion that justices of the
peace are not covered by Section 54. Said the
Court of Appeals: "Anyway, guided by the
rule of exclusion, otherwise known
as expresio unius est exclusio alterius, it
would not be beyond reason to infer that there
was an intention of omitting the term "justice
of the peace from Section 54 of the
Revised Election Code. . . ."
The rule has no application. If the legislature
had intended to exclude a justice of the peace
from the purview of Section 54, neither the
trial court nor the Court of Appeals has given
the reason for the exclusion. Indeed, there
appears no reason for the alleged change.
Hence, the rule of expresio unius est exclusio
alterius has
been
erroneously
applied
(Appellant's Brief, p. 6.)
"Where a statue appears on
its face to limit the operation
of its provisions to particular
persons
or
things
by
enumerating them, but no
reason exists why other
persons or things not so
enumerated should not have
been included, and manifest
injustice will follow by not so
including
them,
the
maxim expresio unius est
exclusio alterius, should not
be invoked." (Blevins vs.

Mullally, 135 p. 307, 22 Cal.

App. 519.)
FOR THE ABOVE REASONS, the order of
dismissal entered by the trial court should be
set aside and this case is remanded for trial on
the merits.
||| (People v. Manantan, G.R. No. L-14129,
[July 31, 1962])
[G.R. No. 72005. May 29, 1987.]
PHILIPPINE BRITISH ASSURANCE C
O., INC., petitioner, vs. THE
HONORABLE INTERMEDIATE
APPELLATE COURT, SYCWIN
COATING & WIRES, INC., and
DOMINADOR CACPAL, Chief Deputy
Sheriff of Manila,respondents.

DECISION

GANCAYCO, J p:
This is a Petition for Review on Certiorari of
the Resolution dated September 12, 1985 of
the Intermediate Appellate Court in AC-G.R.
No. CR-05409 1 granting private respondent's
motion for execution pending appeal and
ordering the issuance of the corresponding
writ of execution on the counterbond to lift
attachment filed by petitioner. The focal issue
that emerges is whether an order of execution
pending appeal of a judgment maybe enforced
on the said bond. In the Resolution of

September 25, 1985 2 this Court as prayed for,

without necessarily giving due course to the
petition, issued a temporary restraining order
enjoining the respondents from enforcing the
order complaint of.
The records disclose that private respondent
Sycwin Coating & Wires, Inc., filed a
complaint for collection of a sum of money
against Varian Industrial Corporation before
the Regional Trial Court of Quezon City.
During the pendency of the suit, private
respondent succeeded in attaching some of the
properties of Varian Industrial Corporation
upon the posting of a supersedeas bond. 3 The
latter in turn posted a counterbond in the sum
of
P1,400,000.00 4 thru
petitioner Philippine British Assurance Co.,
Inc., so the attached properties were released.
On December 28, 1984, the trial court
rendered a Decision, the dispositive portion of
which reads:
"WHEREFORE,
plaintiff's
Motion
for
Summary
Judgment
is
hereby
GRANTED, and judgment is
rendered in favor of the
plaintiff and against the
defendant Varian Industrial
Corporation, and the latter is
hereby ordered:
1. To
pay
plaintiff the amount of
P1,401,468.00,
the
principal obligation
with 12% interest per
annum from the date

of default until fully

paid;
2. To
pay
plaintiff 5% of the
principal obligation as
liquidated damages;
3. To
pay
plaintiff P30,000.00
as
exemplary
damages;
4. To
pay
plaintiff
15%
of
P1,401,468.00,
the
principal obligation,
as and for attorney's
fees; and
5. To pay the
costs of suit.
Accordingly,
the
counterclaim of the defendant
is hereby DISMISSED for
lack of merit.
SO ORDERED." 5
Varian Industrial Corporation appealed the
decision to the respondent Court. Sycwin then
filed a petition for execution pending appeal
against the properties of Varian in respondent
Court. Varian was required to file its comment
but none was filed. In the Resolution of July 5,
1985, respondent Court ordered the execution
pending appeal as prayed for. 6 However, the
writ of execution was returned unsatisfied as
Varian failed to deliver the previously attached
personal properties upon demand. In a Petition
dated August 13, 1985 filed with respondent

Court Sycwin prayed that the surety (herein

petitioner) be ordered to pay the value of its
bond. 7 In compliance with the Resolution of
August 23, 1985 of the respondent Court
herein petitioner filed its comment. 8 In the
Resolution of September 12, 1985, 9 the
respondent Court granted the petition. Hence
this action.
It is the submission of private respondent
Sycwin that without a previous motion for
reconsideration of the questioned resolution,
certiorari would not lie. While as a general
rule a motion for reconsideration has been
considered a condition sine qua non for the
granting of a writ of certiorari, this rule does
not apply when special circumstances warrant
immediate or more direct action. 10 It has
been held further that a motion for
reconsideration may be dispensed with in
cases like this where execution had been
ordered and the need for relief was extremely
urgent. 11
The counterbond provides:
"WHEREAS, in the aboveentitled case pending in the
Regional
Trial
Court,
National Capital Judicial
Region, Branch LXXXV
Quezon City, an order of
Attachment
was
issued
against
abovenamed
Defendant;
WHEREAS, the Defendant,
for the purpose of lifting
and/or dissolving the order of
attachment issued against

them in the above-entitled

case, have offered to file a
counterbond in the sum of
PESOS ONE MILLION
FOUR
HUNDRED
THOUSAND
ONLY
P1,400,000.00), Philippine C
urrency, as provided for in
Section 5 Rule 57 of the
Revised Rules of Court.
NOW, THEREFORE, we,
VARIAN
INDUSTRIAL
CORPORATION,
as
Principal
and
the PHILIPPINE BRITISH A
SSURANCE COMPANY,
INC., a corporation duly
organized and existing under
and by virtue of the laws of
the Philippines, as Surety in
consideration of the above
and of the lifting or
dissolution of the order of
attachment, hereby jointly
and severally, bind ourselves
in favor of the above Plaintiff
in the sum of PESOS ONE
MILLION
FOUR
HUNDRED
THOUSAND
ONLY
(P1,400,000.00), Philippine C
urrency, under the condition
that in case the Plaintiff
recovers judgment in the
action, and Defendant will,
on demand, re-deliver the
attached property so released
to the Officer of the Court

and the same shall be applied

to the payment of the
judgment, or in default
thereof, the defendant and
Surety will, on demand, pay
to the Plaintiff the full value
of the property released.

recover in the action. The

officer shall also forthwith
serve a copy of the applicant's
affidavit and bond, and of the
order of attachment, on the
adverse party, if he be found
within the province.

EXECUTED at Manila,
Philippines, this 28th day of
June, 1984." 12

SEC.
12. Discharge
of
attachment
upon
giving
counterbond. At any time
after an order of attachment
has been granted, the party
whose property has been
attached, or the person
appearing on his behalf, may,
upon reasonable notice to the
applicant, apply to the judge
who granted the order, or to
the judge of the court in
which the action is pending,
for an order discharging the
attachment wholly or in part
on the security given. The
judge shall, after hearing,
order the discharge of the
attachment if a cash deposit is
made, or a counter-bond
executed to the attaching
creditor is filed, on behalf of
the adverse party, with the
clerk or judge of the court
where the application is
made, in an amount equal to
the value of the property
attached as determined by the
judge, to secure the payment
of any judgment that the
attaching
creditor
may

Sections 5, 12, and 17 of Rule 57 of the

Revised Rules of Court also provide:
SEC. 5. Manner of attaching
property. The officer
executing the order shall
without delay attach, to await
judgment and execution in
the action, all the properties
of the party against whom the
order is issued in the
province, not exempt from
execution, or so much thereof
as may be sufficient to satisfy
the
applicant's
demand,
unless the former makes a
deposit with the clerk or
judge of the court from which
the order issued, or gives a
counter-bond executed to the
applicant, in an amount
sufficient to satisfy such
demand besides costs, or in
an amount equal to the value
of the property which is about
to be attached, to secure
payment to the applicant of
any judgment which he may

recover in the action. Upon

the filing of such counterbond, copy thereof shall
forthwith be served on the
attaching creditor or his
lawyer. Upon the discharge of
an attachment in accordance
with the provisions of this
section the property attached,
or the proceeds of any sale
thereof, shall be delivered to
the party making the deposit
or giving the counterbond
aforesaid standing in place of
the property so released.
Should such counterbond for
any reason be found to be, or
become, insufficient, and the
party furnishing the same fail
to
file
an
additional
counterbond, the attaching
creditor may apply for a new
order of attachment.
SEC. 17. When execution
returned unsatisfied, recovery
had upon bond. If the
execution
be
returned
unsatisfied in whole or in
part, the surety or sureties on
any counter-bond given
pursuant to the provisions of
this rule to secure the
payment of the judgment
shall become charged on
such counterbond and bound
to pay to the judgment
creditor upon demand, the
amount due under the

judgment, which amount may

be recovered from such
surety or sureties after notice
and summary hearing in the
same
action.
(Emphasis
supplied.)
Under Sections 5 and 12, Rule 57 above
reproduced it is provided that the counterbond
is intended to secure the payment of "any
judgment" that the attaching creditor may
recover in the action. Under Section 17 of
same rule it provides that when "the execution
be returned unsatisfied in whole or in part" it
is
only
then
that
"payment
of
the judgment shall become charged on such
counterbond."
The counterbond was issued in accordance
with the provisions of Section 5, Rule 57 of
the Rules of Court as provided in the second
paragraph aforecited which is deemed
reproduced as part of the counterbond. In the
third paragraph it is also stipulated that the
counterbond is to be "applied for the payment
of the judgment." Neither the rules nor the
provisions of the counterbond limited its
application to a final and executory judgment.
Indeed, it is specified that it applies to the
payment
of any
judgment that
maybe
recovered by plaintiff. Thus, the only logical
conclusion is that an execution of any
judgment including one pending appeal if
returned unsatisfied maybe charged against
such a counterbond.
It is well recognized rule that where the law
does not distinguish, courts should not
distinguish. Ubi lex non distinguit nec nos
distinguere debemos. 13 The rule, founded on

logic, is a corollary of the principle that

general words and phrases in a statute should
ordinarily be accorded their natural and
general significance. 14 The rule requires that
a general term or phrase should not be reduced
into parts and one part distinguished from the
other so as to justify its exclusion from the
operation of the law. 15 In other words, there
should be no distinction in the application of a
statute where none is indicated. 16 For courts
are not authorized to distinguish where the law
makes no distinction. They should instead
administer the law not as they think it ought to
be but as they find it and without regard to
consequences. 17
A corollary of the principle is the rule that
where the law does not make any exception,
courts may not except something therefrom,
unless there is compelling reason apparent in
the law to justify it. 18 Thus where a statute
grants a person against whom possession of
"any land" is unlawfully withheld the right to
bring an action for unlawful detainer, this
Court held that the phrase "any land" includes
all kinds of land, whether agricultural,
residential, or mineral. 19 Since the law in this
case does not make any distinction nor
intended to make any exception, when it
speaks of "any judgment" which maybe
charged against the counterbond, it should be
interpreted to refer not only to a final and
executory judgment in the case but also a
judgment pending appeal.
All that is required is that the conditions
provided for by law are complied with, as
outlined
in
the
case
of

Towers Assurance Corporation

Supermart, 20

v.

Ororama

"Under Section 17, in order

that the judgment creditor
might recover from the surety
on the counterbond, it is
necessary (1) that the
execution be first issued
against the principal debtor
and that such execution was
returned unsatisfied in whole
or in part; (2) that the creditor
make a demand upon the
surety for the satisfaction of
the judgment, and (3) that the
surety be given notice and a
summary hearing on the same
action as to his liability for
the judgment under his
counterbond."
The rule therefore, is that the counterbond to
lift attachment that is issued in accordance
with the provisions of Section 5, Rule 57, of
the Rules of Court, shall be charged with the
payment of any judgment that is returned
unsatisfied. It covers not only a final and
executory judgment but also the execution of a
judgment pending appeal.
WHEREFORE, the petition is hereby
DISMISSED for lack of merit and the
restraining order issued on September 25,
1985 is hereby dissolved with costs against
petitioner.
SO ORDERED.

||| (Philippine British Assurance Co., Inc. v.

Intermediate Appellate Court, G.R. No.
72005, [May 29, 1987], 234 PHIL 512-521)
[G.R. No. 115245. July 11, 1995.]
JUANITO C.
PILAR, petitioner, vs. COMMISSIO
N ON ELECTION, respondent.
SYLLABUS
1. ELECTION LAW; STATEMENT OF
CONTRIBUTION AND EXPENDITURE;
THE TERM "EVERY CANDIDATE"
MAKES
NO
DISTINCTION
OR
QUALIFICATION. Section 14 of R.A. No.
7166 states that "every candidate" has the
obligation to file his statement of contributions
and expenditures. Well-recognized is the rule
that where the law does not distinguish, courts
should not distinguish. Ubi lex non distinguit
nec nos distinguere debemos. No distinction is
to be made in the application of a law where
none is indicated. In the case at bench, as the
law makes no distinction or qualification as to
whether the candidate pursued his candidacy
or withdrew the same, the term "every
candidate" must be deemed to refer not only to
a candidate who pursued his campaign, but
also to one who withdrew his candidacy. The
COMELEC, the body tasked with the
enforcement and administration of all laws
and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and
recall (The Constitution of the Republic of the

Philippines, Art. IX(C), Sec. 2[1]), issued

Resolution No. 2348 in implementation or
interpretation
of
the
provisions
of
Republic Act
No.
7166 on
election
contributions and expenditures. Section 13 of
Resolution No. 2348 categorically refers to
"all candidates who filed their certificates of
candidacy."
2. ID.; ID.; MANDATORY. Section 14 of
the law uses the word "shall." As a general
rule, the use of the word "shall" in a statute
implies that the statute is mandatory, and
imposes a duty which may be enforced,
particularly if public policy is in favor of this
meaning or where public interest is involved.
We apply the general rule.
3. ID.; ID.; ID.; REASON THEREFOR.
The state has an interest in seeing that the
electoral process is clean, and ultimately
expressive of the true will of the electorate.
One way of attaining such objective is to pass
legislation regulating contributions and
expenditures of candidates, and compelling
the publication of the same. Admittedly,
contributions and expenditures are made for
the purpose of influencing the results of the
elections. Thus, laws and regulations prescribe
what contributions are prohibited, or unlawful,
and what expenditures are authorized or
lawful. Such statutes are not peculiar to the
Philippines. In "corrupt and illegal practices
acts" of several states in the United States, as
well as in federal statutes, expenditures of
candidates are regulated by requiring the filing
of statements of expenses and by limiting the
amount of money that may be spent by a
candidate. Some statutes also regulate the
solicitation of campaign contributions. These

laws are designed to compel publicity with

respect to matters contained in the statements
and to prevent, by such publicity, the improper
use of moneys devoted by candidates to the
furtherance of their ambitions. These statutes
also enable voters to evaluate the influences
exerted on behalf of candidates by the
contributors, and to furnish evidence of
corrupt practices for annulment of elections.
State courts have also ruled that such
provisions are mandatory as to the
requirement of filing. It is not improbable that
a candidate who withdrew his candidate has
accepted
contributions
and
incurred
expenditures, even in the short span of his
campaign. The evil sought to be prevented by
the law is not all too remote. It is noteworthy
that Resolution No. 2348 even contemplates
the situation where a candidate may not have
received any contribution or made any
expenditure. Such a candidate is not excused
from filing a statement, and is in fact required
to file a statement of that effect. Under Section
15 of Resolution No. 2348, it is provided that
"[i]f a candidate or treasurer of the party has
received
no
contribution,
made
no
expenditure, or has no pending obligation, the
statement shall reflect such fact."
4. ID.; ID.; DUTY THERETO, NOT
EXTINGUISHED
BY
CANDIDATES
WITHDRAWAL OF CANDIDACY. We
note that under the fourth paragraph of Section
73 of the B.P. Blg. 881 or the Omnibus
Election Code of the Philippines, it is provided
that "[t]he filing or withdrawal of certificate of
candidacy shall not affect whatever civil,
criminal or administrative liabilities which a
candidate may have incurred." Petitioner's

withdrawal of his candidacy did not extinguish

his liability for the administrative fine.

040), which denied the petition in a

Resolution dated April 28, 1994 (Rollo, pp.
10-13).
Hence, this petition for certiorari.

DECISION

We dismiss the petition.

II

QUIASON, J p:
This is a petition for certiorari
under Rule 65 of the Revised Rules of
Court assailing the Resolution dated April
28, 1994 of the Commission on Elections
(COMELEC) in UND No. 94-040.
I
On March 22, 1992, petitioner
Juanito C. Pilar filed his certificate of
candidacy for the position of member of
the Sangguniang Panlalawigan of the
Province of Isabela.
On March 25, 1992, petitioner
withdrew his certificate of candidacy.
In M.R. Nos. 93-2654 and 94-0065
dated November 3, 1993 and February 13,
1994 respectively, the COMELEC
imposed upon petitioner the fine of Ten
Thousand Pesos (P10,000.00) for failure to
file his statement of contributions and
expenditures.
In M.R. No. 94-0594 dated
February 24, 1994, the COMELEC denied
the motion for reconsideration of
petitioner and deemed final M. R. Nos. 932654 and 94-0065 (Rollo, p. 14).
Petitioner
went
COMELEC En Banc (UND

to
No.

the
94-

Section
14
of R.A.
No.
7166 entitled "An Act Providing for
Synchronized
National
and
Local
Elections and for Electoral Reforms,
Authorizing Appropriations Therefore, and
for Other Purposes" provides as follows:
"Statement of Contributions
and Expenditures: Effect of
Failure to File Statement.
Every candidate and treasurer
of the political party shall,
within thirty (30) days after
the day of the election, file in
duplicate with the offices of
the Commission the full, true
and itemized statement of all
contributions
and
expenditures in connection
with the election.
"No person elected to any
public office shall enter upon
the duties of his office until
he has filed the statement of
contributions
and
expenditures herein required.
"The same prohibition shall
apply if the political party
which nominated the winning
candidate fails to file the
statement required herein

within the period prescribed

by this Act.

statements of contributions
and expenditures.

"Except
candidates
for
elective barangay office,
failure to file the statements
or reports in connection with
electoral contributions and
expenditures as required
herein shall constitute an
administrative offense for
which the offenders shall be
liable
to
pay
an
administrative fine ranging
from One Thousand Pesos
(P1,000.00)
to
Thirty
Thousand
Pesos
(P30,000.00),
in
the
discretion
of
the
Commission.

"For the commission of a

second or subsequent offense
under this Section, the
administrative fine shall be
from Two Thousand Pesos
(P2,000.00)
to
Sixty
Thousand
Pesos
(P60,000.00),
in
the
discretion
of
the
Commission. In addition, the
offender shall be subject to
perpetual disqualification to
hold public office" (Emphasis
supplied).

"The fine shall be paid within

thirty (30) days from receipt
of notice of such failure;
otherwise,
it
shall
be
enforceable by a writ of
execution issued by the
Commission against the
properties of the offender.
"It shall be the duty of every
city or municipal election
registrar to advise in writing,
by personal delivery or
registered mail, within five
(5) days from the date of
election all
candidates residing in his
jurisdiction to comply with
their obligation to file their

To implement the provisions of law

relative to election contributions and
expenditures, the COMELEC promulgated
on January 13, 1992 Resolution No. 2348
(Re: Rules and Regulations Governing
Electoral Contributions and Expenditures
in Connection with the National and Local
Elections on May 11, 1992). The pertinent
provisions of said Resolution are:
"Sec.
13 Statement
of
contributions
and
expenditures: Reminders to
candidates to file statements.
Within five (5) days from the
day of the election, the Law
Department
of
the
Commission, the regional
election director of the
National Capital Region, the
provincial
election
supervisors and the election

registrars shall advise in

writing by personal delivery
or
registered
mail all
candidates who filed their
certificates of candidacy with
them to comply with their
obligation to file their
statements of contribution
and
expenditures
in
connection with the elections.
Every election registrar shall
also
advise all
candidates residing in his
jurisdiction to comply with
said obligation." (Emphasis
supplied)
"Sec. 17. Effect of failure to
file statement. (a) No person
elected to any public office
shall enter upon the duties of
his office until he has filed
the statement of contributions
and
expenditures
herein
required.
"The same prohibition shall
apply if the political party
which nominated the winning
candidates fails to file the
statement required within the
period prescribed by law.
"(b) Except candidates for
elective barangay office,
failure to file statements or
reports in connection with the
electoral contributions and
expenditures as required
herein shall constitute an

administrative offense for

which the offenders shall be
liable
to
pay
an
administrative fine ranging
from One Thousand Pesos
(P1,000.00)
to
Thirty
Thousand
Pesos
(P30,000.00),
in
the
discretion
of
the
Commission.
"The fine shall be paid within
thirty (30) days from receipt
of notice of such failure;
otherwise,
it
shall
be
enforceable by a writ of
execution issued by the
Commission against the
properties of the offender.
"For the commission of a
second or subsequent offense
under this section, the
administrative fine shall be
from Two Thousand Pesos
(P2,000.00)
to
Sixty
Thousand
Pesos
(P60,000.00),
in
the
discretion
of
the
Commission. In addition, the
offender shall be subject to
perpetual disqualification to
hold public office."
Petitioner argues that he cannot be
held liable for failure to file a statement of
contributions and expenditures because he
was a "non-candidate," having withdraw

his certificate of candidacy three days after

its filing. Petitioner posits that "it is . . .
clear from the law that the candidate must
have entered the political contest, and
should have either won or lost." (Rollo, p.
39)
Petitioner's argument is without
merit.
Section 14 of R. A. No. 7166 states
that "every candidate" has the obligation to
file his statement of contributions and
expenditures.
Well-recognized is the rule that
where the law does not distinguished,
courts should not distinguished. Ubi lex
non distinguit nec nos distinguere
debemos (Philippine British Assurance
Co. Inc. v. Intermediate Appellate Court,
150 SCRA 520 [1987]; cf. Olfato v.
Commission on Election, 103 SCRA 741
[1981]). No distinction is to be made in the
application of a law where none is
indicated (Lo Cham v. Ocampo, 77 Phil.
636 [1946]).
In the case at bench, as the law
makes no distinction or qualification as to
whether the candidate pursued his
candidacy or withdrew the same, the term
"every candidate" must be deemed to refer
not only to a candidate who pursued his
campaign, but also to one who withdrew
his candidacy.
The COMELEC, the body tasked
with the enforcement and administration
of all laws and regulations relative to the
conduct of an election, plebiscite,
initiative, referendum, and recall (The

Constitution of the Republic of the

Philippines, Art. IX(C), Sec. 2[1]), issued
Resolution No. 2348 in implementation or
interpretation of the provisions of
Republic Act No. 7166 on election
contributions and expenditures. Section 13
of Resolution No. 2348 categorically
refers to "all candidates who filed their
certificates of candidacy."
Furthermore, Section 14 of the law
uses the word "shall." As a general rule,
the use the word "shall" in a statute
implies that the statute is mandatory, and
imposes a duty which may be enforced,
particularly if public policy is in favor of
this meaning or where public interest is
involved. We apply the general rule
(Baranda v. Gustilo, 165 SCRA 757
[1988]; Diokno v. Rehabilitation Finance
Corporation, 91 Phil. 608 [1952]).
The state has an interest in seeing
that the electoral process is clean, and
ultimately expressive of the true will of the
electorate. One way of attaining such
objective is t to pass legislation regulating
contributions and
expenditures
of
candidates, and compelling the publication
of the same. Admittedly, contributions and
expenditures are made for the purpose of
influencing the results of the elections
(B.P. Blg. 881, Sec. 94; Resolution No.
2348, Sec. 1). Thus, laws and regulations
prescribe what contributions are prohibited
(B.P. Blg. 881, Sec. 95; Resolution No.
2348, Sec. 4), or unlawful (B.P. Blg. 881,
Sec. 96), and what expenditures are
authorized (B.P. Blg. 881, Sec. 102; R.A.
No. 7166, Sec. 13; Resolution No. 2348,

Sec. 7) or lawful (Resolution No. 2348,

Sec. 8).

campaign. The evil sought to be prevented

by the law is not all too remote.

Such statutes are not peculiar to the

Philippines. In "corrupt and illegal
practices acts" of several states in the
United States, as well as in federal
statutes, expenditures of candidates are
regulated by requiring the filing of
statements of expenses and by limiting the
amount of money that may be spent by a
candidate. Some statutes also regulate the
solicitation of campaign contributions (26
Am Jur 2d, Elections S 287). These laws
are designed to compel publicity with
respect to matters contained in the
statements and to prevent, by such
publicity, the improper use of moneys
devoted by candidates to the furtherance of
their ambitions (26 Am Jur 2d, Elections S
289). These statutes also enable voters to
evaluate the influences exerted on behalf
of candidates by the contributors, and to
furnish evidence of corrupt practices for
annulment of elections (Sparkman v.
Saylor[Court of Appeals of Kentucky],
180 Ky. 263, 202 S.W. 649 [1918]).

It is noteworthy that Resolution

No. 2348 even contemplates the situation
where a candidate may not have received
any contribution or made any expenditure.
Such a candidate is not excused from
filing a statement, and is in fact required to
file a statement to that effect.
Under Section 15 of Resolution No. 2348,
it is provided that "[i]f a candidate or
treasurer of the party has received no
contribution, made no expenditure, or has
no pending obligation, the statement shall
reflect such fact."

State courts have also ruled that

such provisions are mandatory as to the
requirement of filing (State ex rel.
Butchofsky v. Crawford [Court of Civil
Appeals of Texas], 269 S. W. 2d 536
[1954]; Best v. Sidebottom, 270 Ky. 423,
109 S.W. 2d 826 [1937]; Sparkman v.
Saylor, supra.)

WHEREFORE, the petition is

DISMISSED.
||| (Pilar v. COMELEC, G.R. No. 115245,
[July 11, 1995], 315 PHIL 851-860)

It is not improbable that a

candidate who withdrew his candidacy has
accepted contributions and incurred
expenditures, even in the short span of his

PEOPLE
OF
THE
PHILIPPINES, petitioner, vs. HON.
JUDGE
ANTONIO
C.

Lastly, we note that under the

fourth paragraph of Section 73 of the B.P.
Blg. 881 or the Omnibus Election Code of
the Philippines, it is provided that "[t]he
filing or withdrawal of certificate of
candidacy shall not affect whatever civil,
criminal or administrative liabilities which
a candidate may have incurred."
Petitioner's withdrawal of his candidacy
did not extinguish his liability for the
administrative fine.

[G.R. No. 110898. February 20, 1996.]

EVANGELISTA, as Presiding Judge

of Branch XXI, 10th Judicial
Region, RTC of Misamis Oriental,
Cagayan de Oro City, and GRILDO
S. TUGONON, respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL
ACTION, CERTIORARI; GRANT OF
PROBATION TO ACCUSED AFTER
APPEAL,
A
GRAVE
ABUSE
OF
DISCRETION. It was possible under P.D.
No. 986, otherwise known as the Probation
Law, for the accused to take his chances on
appeal by allowing probation to be granted
even after an accused had appealed his
sentence and failed to obtain an acquittal, just
so long as he had not yet started to serve the
sentence. The law was, however, amended
by P.D. No. 1990 which took effect on January
15, 1986 precisely to put a stop to the practice
of appealing from judgments of conviction
even if the sentence is probationable for the
purpose of securing an acquittal and applying
for probation only if the accused fails in his
bid. Since private respondent filed his
application for probation on December 28,
1992, after P.D. No. 1990 had taken effect, it
is covered by the prohibition that "no
application for probation shall be entertained
or granted if the defendant has perfected the
appeal from the judgment of conviction" and
that "the filing of the application shall be
deemed a waiver of the right to appeal."
Having appealed from the judgment of the
trial court and having applied for probation
only after the Court of Appeals had affirmed

his conviction, private respondent was clearly

precluded from the benefits of probation.
WHEREFORE, the petition is GRANTED and
the order of April 23, 1993 of the Regional
Trial Court of Misamis Oriental (Branch 21)
granting probation to private respondent
Grildo S. Tugonon is SET ASIDE.
2. CRIMINAL LAW; PROBATION LAW;
PROHIBITION AGAINST PERFECTION
OF APPEAL; APPEAL REFERS TO THAT
TAKEN
FROM
JUDGMENT
OF
CONVICTION BY TRIAL COURT. The
ruling of the RTC that "[h]aving not perfected
an appeal against the Court of Appeals
decision, [private respondent] is, therefore, not
covered by [the amendment in] P.D. 1990" is
an obvious misreading of the law. The
perfection of the appeal referred in the law
refers to the appeal taken from a judgment of
conviction by the trial court and not that of the
appellate court, since under the law an
application for probation is filed with the trial
court which can only grant the same "after it
shall have convicted and sentenced [the]
defendant, and upon application by said
defendant within the period for perfecting an
appeal." Accordingly, in Llamado v. Court of
Appeals, it was held that the petitioner who
had appealed his sentence could not
subsequently apply for probation.

DECISION

Private respondent Grildo S. Tugonan was

charged with frustrated homicide in the
Regional Trial Court of Misamis Oriental
(Branch 21), the information against him
alleging
That on or about the 26th day
of May, 1988, at more or less
9:00 o'clock in the evening at
Barangay
Poblacion,
Municipality of Villanueva,
Province
of
Misamis
Oriental, Republic of the
Philippines and within the
jurisdiction of this Honorable
Court,
the
abovenamed
accused with intent to kill and
with the use of a knife, which
he was then conveniently
provided of, did then and
there willfully, unlawfully
and
feloniously
assault,
attack and stab Roque T.
Bade thereby inflicting upon
him the following injuries, to
wit:
Stab
iliac area,

wound,

right

0.5 cm. penetrating

non
perforating lacerating
posterior
peritoneum, 0.5 cm.

MENDOZA, J p:

thus performing all the acts of

execution
which
would
produce the crime
of

Homicide as a consequence
but which, nevertheless, did
not produce it by reason of
causes independent of the
will of the accused, that is by
timely medical attendance
which prevented his death.
CONTRARY TO and in
violation of Article 249 in
relation to Article 6 of the
Revised Penal Code.
After trial he was found guilty and sentenced
to one year of prision correccional in its
minimum period and ordered to pay to the
offended party P5,000.00 for medical expense,
without subsidiary imprisonment, and the
costs. The RTC appreciated in his favor the
privileged mitigating circumstances of
incomplete self-defense and the mitigating
circumstance of voluntary surrender.
On appeal the Court of Appeals affirmed
private respondent's conviction but modified
his sentence by imposing on him an
indeterminate penalty of 2 months of arresto
mayor, as minimum, to 2 years and 4 months
of prision correccional, as maximum. 1
On December 21, 1992, respondent Judge
Antonio C. Evangelista of the RTC set the
case for repromulgation on January 4, 1993.
On December 28, 1992, private respondent
filed a petition for probation, 2 alleging that
(1) he possessed all the qualifications and
none of the disqualifications for probation
under P.D. No. 968, as amended; (2) the Court
of Appeals had in fact reduced the penalty
imposed on him by the trial court; (3) in its

resolution, the Court of Appeals took no action

on a petition for probation which he had
earlier filed with it so that the petition could
be filed with the trial court; (4) in the trial
court's decision, two mitigating circumstances
of incomplete self-defense and voluntary
surrender were appreciated in his favor; and
(5) in Santos To v. Pao, 3 the Supreme Court
upheld the right of the accused to probation
notwithstanding the fact that he had appealed
from his conviction by the trial court.
On February 2, 1993, the RTC ordered private
respondent to report for interview to the
Provincial Probation Officer. The Provincial
Probation Officer on the other hand was
required to submit his report with
recommendation to the court within 60 days. 4
On February 18, 1993, Chief Probation and
Parole
Officer
Isias
B. Valdehueza
recommended denial of private respondent's
application for probation on the ground that by
appealing the sentence of the trial court, when
he could have then applied for probation,
private respondent waived the right to make
his application. The Probation Officer thought
the present case to be distinguishable
from Santos To v. Pao in the sense that in this
case the original sentence imposed on private
respondent by the trial court (1 year of
imprisonment) was probationable and there
was no reason for private respondent not to
have filed his application for probation then,
whereas in Santos To v. Pao the penalty only
became probationable after it had been
reduced as a result of the appeal.
On April 16, 1993 Valdehueza reiterated 5 his
"respectful recommendation that private

respondent's application for probation be

denied and that a warrant of arrest be issued
for him to serve his sentence in jail."
The RTC set aside the Probation Officer's
recommendation
and
granted
private
respondent's application for probation in its
order of April 23, 1993. 6 Hence this petition
by the Prosecution.
The issue in this case is whether the RTC
committed a grave abuse of its discretion by
granting private respondent's application for
probation despite the fact that he had appealed
from the judgment of his conviction of the
trial court.
The Court holds that it did.
Until its amendment by P.D. No. 1990 in
1986, it was possible under P.D. No. 986,
otherwise known as the Probation Law, for the
accused to take his chances on appeal by
allowing probation to be granted even after an
accused had appealed his sentence and failed
to obtain an acquittal, just so long as he had
not yet started to serve the sentence. 7
Accordingly, in Santos To v. Pao, it was held
that the fact that the accused had appealed did
not bar him from applying for probation
especially because it was as a result of the
appeal that his sentence was reduced and
made the probationable limit.
The law was, however, amended by P.D. No.
1990 which took effect on January 15,
1986 8 precisely to put a stop to the practice of
appealing from judgments of conviction even
if the sentence is probationable for the purpose
of securing an acquittal and applying for
probation only if the accused fails in his bid.

Thus, as amended by P.D. No. 1990, 4 of

the Probation Law now reads:
4. Grant of Probation.
Subject to the provisions of
this Decree, the trial court
may, after it shall have
convicted and sentenced a
defendant,
and
upon
application
by
said
defendant within the period
for perfecting an appeal,
suspend the execution of the
sentence and place the
defendant on probation for
such period and upon such
terms and conditions as it
may deem best; Provided,
That no application for
probation
shall
be
entertained or granted if the
defendant has perfected the
appeal from the judgment of
conviction.
Probation may be granted
whether the sentence imposes
a term of imprisonment or a
fine only. An application for
probation shall be filed with
the trial court. The filing of
the application shall be
deemed a waiver of the right
to appeal.
An order granting or denying
probation shall not be
appealable. (Emphasis added)

Since private respondent filed his application

for probation on December 28, 1992,
after P.D. No. 1990 had taken effect, 9 it is
covered by the prohibition that "no application
for probation shall be entertained or granted if
the defendant has perfected the appeal from
the judgment of conviction" and that "the
filing of the application shall be deemed a
waiver of the right to appeal." Having
appealed from the judgment of the trial court
and having applied for probation only after the
Court of Appeals had affirmed his conviction,
private respondent was clearly precluded from
the benefits of probation.
Private respondent argues, however, that a
distinction should be drawn between
meritorious appeals (like his appeal
notwithstanding
the
appellate
court's
affirmance
of
his
conviction)
and
unmeritorious appeals. But the law does not
make any distinction and so neither should the
Court. In fact if an appeal is truly meritorious
the accused would be set free and not only
given probation. Private respondent's original
sentence (1 year of prision correccional in its
minimum period) and the modified sentence
imposed by the Court of Appeals (2 months
of arresto mayor, as minimum, to 2 years and
4 months of prision correccional, as
maximum) are probationable. Thus the fact
that he appealed meant that private respondent
was taking his chances which the law
precisely frowns upon. This is precisely the
evil that the amendment in P.D. No.
1990 sought to correct, since in the words of
the preamble to the amendatory law,
"probation was not intended as an escape
hatch and should not be used to obstruct and

delay the administration of justice, but should

be availed of at the first opportunity by
offenders who are willing to be reformed and
rehabilitated."
The ruling of the RTC that "[h]aving not
perfected an appeal against the Court of
Appeals decision, [private respondent] is,
therefore, not covered by [the amendment
in] P.D. 1990" is an obvious misreading of the
law. The perfection of the appeal referred in
the law refers to the appeal taken from a
judgment of conviction by the trial court and
not that of the appellate court, since under the
law an application for probation is filed with
the trial court which can only grant the same
"after it shall have convicted and sentenced
[the] defendant, and upon application by said
defendant within the period for perfecting an
appeal." Accordingly, in Llamado v. Court of
Appeals, 10 it was held that the petitioner who
had appealed his sentence could not
subsequently apply for probation.
WHEREFORE, the petition is GRANTED and
the order of April 23, 1993 of the Regional
Trial Court of Misamis Oriental (Branch 21)
granting probation to private respondent
Grildo S. Tugonon is SET ASIDE.
SO ORDERED.
||| (People v. Evangelista, G.R. No. 110898,
[February 20, 1996], 324 PHIL 80-88)
[G.R. No. 87416. April 8, 1991.]

CECILIO
S.
DE
VILLA, petitioner, vs. THE
HONORABLE
COURT
OF
APPEALS, PEOPLE OF THE
PHILIPPINES, HONORABLE JOB
B. MADAYAG, and ROBERTO Z.
LORAYES, respondents.
SYLLABUS
1. REMEDIAL
LAW;
JURISDICTION;
DEFINED. Jurisdiction is the power with
which courts are invested for administering
justice, that is, for hearing and deciding cases
(Velunta v. Philippine Constabulary, 157
SCRA 147 [1988]).
2. ID.;
ID.;
CLASSIFICATION.

Jurisdiction in general, is either over the

nature of the action, over the subject matter,
over the person of the defendant, or over the
issues framed in the pleadings (Balais v.
Balais, 159 SCRA 37 [1988]).
3. ID.; ID.; JURISDICTION OVER THE
SUBJECT MATTER, HOW DETERMINED.
Jurisdiction over the subject matter is
determined by the statute in force at the time
of commencement of the action (De la Cruz v.
Moya, 160 SCRA 538 [1988]).
4. ID.; ID.; DETERMINED BY THE
ALLEGATIONS IN THE INFORMATION.
Jurisdiction or venue is determined by the
allegations in the information." (Lim v.
Rodrigo; 167 SCRA 487 [1988]).
5. ID.; ID.; ID.; CASE AT BAR. The
information under consideration specifically

alleged that the offense was committed in

Makati, Metro Manila and therefore, the same
is controlling and sufficient to vest jurisdiction
upon the Regional Trial Court of Makati. The
Court acquires jurisdiction over the case and
over the person of the accused upon the filing
of a complaint or information in court which
initiates a criminal action (Republic v. Sunga,
162 SCRA 191 [1988]).
6. ID.; PLACE OF ISSUANCE OF CHECK,
VENUE OF VIOLATION OF BOUNCING
CHECK LAW. The determinative factor in
determining venue is the place of the issuance
of the check. (People v. Grospe, 157 SCRA
154 [1988])
7. ID.; ID.; BATAS PAMBANSA BLG. 22;
VENUE DETERMINED BY PLACE OF
DELIVERY. On the matter of venue for
violation of Batas Pambansa Bilang 22, the
Ministry of Justice, citing the case of People v.
Yabut (76 SCRA 624 [1977], laid down the
following guidelines in Memorandum Circular
No. 4 dated December 15, 1981 that "(1)
Venue of the offense lies at the place where
the check was executed and delivered; (2) the
place where the check was written, signed or
dated does not necessarily fix the place where
it was executed, as what is of decisive
importance is the delivery thereof which is the
final act essential to its consummation as an
obligation; . . . (Res. No. 377, s. 1980, Filtex
Mfg. Corp. vs. Manuel Chua, October 28,
1980)." (See The Law on Bouncing Checks
Analyzed by Judge Jesus F. Guerrero,
Philippine Law Gazette, Vol. 7. Nos. 11 & 12,
October-December, 1983, p. 14).

8. STATUTORY CONSTRUCTION AND

INTERPRETATION; WHERE THE LAW
DOES NOT DISTINGUISH, WE SHOULD
NOT DISTINGUISH. It will be noted that
the law does not distinguish the currency
involved in the case. As the trial court
correctly ruled in its order dated July 5, 1988:
"Under the Bouncing Checks Law (B.P. Blg.
22), foreign checks, provided they are either
drawn and issued in the Philippines though
payable outside thereof . . . are within the
coverage of said law." It is a cardinal principle
in statutory construction that where the law
does not distinguish courts should not
distinguish.
9. ID.; WHERE THE LAW DOES NOT
MAKE ANY EXCEPTION, COURTS MAY
NOT EXCEPT. Where the law does not
make any exception, courts may not except
something unless compelling reasons exist to
justify it (Phil. British Assurance Co., Inc. v.
IAC, 150 SCRA 520 [1987]).
10. ID.; COURTS MAY AVAIL OF
LEGISLATIVE PROCEEDINGS IN THE
CONSTRUCTION OF STATUTES OF
DOUBTFUL MEANING. Courts may
avail themselves of the actual proceedings of
the legislative body to assist in determining
the construction of a statute of doubtful
meaning (Palanca v. City of Manila, 41 Phil.
125 [1920]). Thus, where there is doubt as to
what a provision of a statute means, the
meaning put to the provision during the
legislative deliberation or discussion on the
bill may be adopted (Arenas v. City of San
Carlos, 82 SCRA 318 [1978]).

DECISION

PARAS, J p:
This petition for review on certiorari seeks to
reverse and set aside the decision * of the
Court of Appeals promulgated on February 1,
1989 in CA-G.R. SP No. 16071 entitled
"Cecilio S. de Villa vs. Judge Job B. Madayag,
etc. and Roberto Z. Lorayes", dismissing the
petition for certiorari filed therein.
The factual backdrop of this case, as found by
the Court of Appeals, is as follows:
"On October 5, 1987,
petitioner Cecilio S. de Villa
was charged before the
Regional Trial Court of the
National Capital Judicial
Region (Makati, Branch 145)
with
violation
of Batas
Pambansa
Bilang
22,
allegedly
committed
as
follows:
'That on or
about the 3rd day of
April 1987, in the
municipality
of
Makati,
Metro
Manila, Philippines
and
within
the
jurisdiction of this
Honorable Court, the
above-named accused,
did, then and there
willfully, unlawfully
and feloniously make

or draw and issue to

ROBERTO
Z.
LORAYEZ, to apply
on account or for
value a Depositors
Trust Company Check
No. 3371 antedated
March 31, 1987,
payable to herein
complainant in the
total amount of U.S.
$2,500.00 equivalent
to P50,000.00, said
accused well knowing
that at the time of
issue he had no
sufficient funds in or
credit with drawee
bank for payment of
such check in full
upon its presentment
which check when
presented
to
the
drawee bank within
ninety (90) days from
the date thereof was
subsequently
dishonored for the
reason
'INSUFFICIENT
FUNDS' and despite
receipt of notice of
such dishonor said
accused failed to pay
said ROBERTO Z.
LORAYEZ
the
amount of P50,000.00
of said check or to
make arrangement for

full payment of the

same within five (5)
banking days after
receiving said notice.'
"After arraignment and after
private
respondent
had
testified
on
direct
examination,
petitioner
moved to dismiss the
Information on the following
grounds: (a) Respondent
court has no jurisdiction over
the offense charged; and b)
That
no
offense
was
committed since the check
involved was payable in
dollars, hence, the obligation
created is null and void
pursuant to Republic Act No.
529 (An Act to Assure
Uniform Value of Philippine
Coin and Currency).
"On
July
19,
1988,
respondent court issued its
first
questioned
orders
stating:
'Accused's
motion to dismiss
dated July 5, 1988, is
denied for lack of
merit.
'Under
the Bouncing Checks
Law (B.P. Blg. 22),
foreign
checks,
provided they are

either drawn and

issued
in
the
Philippines
though
payable
outside
thereof, or made
payable
and
dishonored in the
Philippines
though
drawn and issued
outside thereof, are
within the coverage of
said law. The law
likewise applied to
checks drawn against
current accounts in
foreign currency.'
"Petitioner
moved
for
reconsideration
but
his
motion was subsequently
denied by respondent court in
its order dated September 6,
1988, and which reads:
'Accused's
motion
for
reconsideration, dated
August
9,
1988,
which was opposed
by the prosecution, is
denied for lack of
merit.
'The Bouncing
Checks
Law is
applicable to checks
drawn against current
accounts in foreign
currency (Proceedings
of
the
Batasang

Pambansa, February
7, 1979, p. 1376, cited
in Makati RTC Judge
(now Manila City
Fiscal)
Jesus
F.
Guerrero's
The
Ramifications of the
Law on Bouncing
Checks,
p.
5).'"
(Rollo, Annex "A",
Decision, pp. 20-22)
A petition for certiorari seeking to declare the
nullity of the aforequoted orders dated July 19,
1988 and September 6, 1988 was filed by the
petitioner in the Court of Appeals wherein he
contended:
"(a) That since the questioned
check was drawn against the
dollar account of petitioner
with
a
foreign
bank,
respondent court has no
jurisdiction over the same or
with accounts outside the
territorial jurisdiction of the
Philippines and that Batas
Pambansa Bilang 22 could
have
not
contemplated
extending its coverage over
dollar accounts;
"(b) That assuming that the
subject check was issued in
connection with a private
transaction
between
petitioner
and
private
respondent, the payment
could not be legally paid in
dollars
as
it
would

violate Republic Act No. 529;

and

submit simultaneously their respective

memoranda (Rollo, Resolution, p. 81).

"(c) That
the
obligation
arising from the issuance of
the questioned check is null
and void and is not
enforceable
within
the
Philippines either in a civil or
criminal suit. Upon such
premises,
petitioner
concludes that the dishonor
of the questioned check
cannot be said to have
violated
the
provisions
of Batas Pambansa Bilang
22." (Rollo, Annex "A",
Decision, p. 22).

The sole issue in this case is whether or not

the Regional Trial Court of Makati has
jurisdiction over the case in question.

On February 1, 1989, the Court of Appeals

rendered a decision, the decretal portion of
which reads:
"WHEREFORE, the petition
is hereby dismissed. Costs
against petitioner.
"SO ORDERED." (Rollo,
Annex "A", Decision, p. 5).
A motion for reconsideration of the said
decision was filed by the petitioner on
February 7, 1989 (Rollo, Petition, p. 6) but the
same was denied by the Court of Appeals in
its resolution dated March 3, 1989 (Rollo,
Annex "B", p. 26).
Hence, this petition.
In its resolution dated November 13, 1989, the
Second Division of this Court gave due course
to the petition and required the parties to

The petition is without merit.

Jurisdiction is the power with which courts are
invested for administering justice, that is, for
hearing and deciding cases (Velunta v.
Philippine Constabulary, 157 SCRA 147
[1988]).
Jurisdiction in general, is either over the
nature of the action, over the subject matter,
over the person of the defendant, or over the
issues framed in the pleadings (Balais v.
Balais, 159 SCRA 37 [1988]).
Jurisdiction over the subject matter is
determined by the statute in force at the time
of commencement of the action (De la Cruz v.
Moya, 160 SCRA 538 [1988]).
The trial court's jurisdiction over the case,
subject of this review, can not be questioned.
Sections 10 and 15(a), Rule 110 of the Rules
of Court specifically provide that:
"Sec. 10. Place of the
commission of the offense.
The complaint or information
is sufficient if it can be
understood therefrom that the
offense was committed or
some of the essential
ingredients thereof occurred
at some place within the

jurisdiction of the court,

unless the particular place
wherein it was committed
constitutes
an
essential
element of the offense or is
necessary for identifying the
offense charged.
"Sec. 15. Place where action
is to be instituted. (a) Subject
to existing laws, in all
criminal prosecutions the
action shall be instituted and
tried in the court of the
municipality or territory
where the offense was
committed or any of the
essential ingredients thereof
took place."
In the case of People v. Hon. Manzanilla (156
SCRA 279 [1987] cited in the case of Lim v.
Rodrigo, 167 SCRA 487 [1988]), the Supreme
Court ruled "that jurisdiction or venue is
determined by the allegations in the
information."
The
information
under
consideration
specifically alleged that the offense was
committed in Makati, Metro Manila and
therefore, the same is controlling and
sufficient to vest jurisdiction upon the
Regional Trial Court of Makati. The Court
acquires jurisdiction over the case and over
the person of the accused upon the filing of a
complaint or information in court which
initiates a criminal action (Republic v. Sunga,
162 SCRA 191 [1988]).

Moreover, it has been held in the case of Que

v. People of the Philippines (154 SCRA 160
[1987] cited in the case of People v. Grospe,
157 SCRA 154 [1988]) that 'the determinative
factor (in determining venue) is the place of
the issuance of the check."
On the matter of venue for violation of Batas
Pambansa Bilang 22, the Ministry of Justice,
citing the case of People v. Yabut (76 SCRA
624 [1977], laid down the following
guidelines in Memorandum Circular No.
4 dated December 15, 1981, the pertinent
portion of which reads:
"(1) Venue of the offense lies
at the place where the check
was executed and delivered;
(2) the place where the check
was written, signed or dated
does not necessarily fix the
place where it was executed,
as what is of decisive
importance is the delivery
thereof which is the final act
essential to its consummation
as an obligation; . . . (Res.
No. 377, s. 1980, Filtex Mfg.
Corp. vs. Manuel Chua,
October 28, 1980)." (See The
Law on Bouncing Checks
Analyzed by Judge Jesus F.
Guerrero, Philippine Law
Gazette, Vol. 7. Nos. 11 & 12,
October-December, 1983, p.
14).
It is undisputed that the check in question was
executed and delivered by the petitioner to

herein private respondent at Makati, Metro

Manila.
However, petitioner argues that the check in
question was drawn against the dollar account
of petitioner with a foreign bank, and is
therefore, not covered by the Bouncing
Checks Law (B.P. Blg. 22).
But it will be noted that the law does not
distinguish the currency involved in the case.
As the trial court correctly ruled in its order
dated July 5, 1988:
"Under the Bouncing Checks
Law (B.P. Blg. 22), foreign
checks, provided they are
either drawn and issued in the
Philippines though payable
outside thereof . . . are within
the coverage of said law."
It is a cardinal principle in statutory
construction that where the law does not
distinguish courts should not distinguish.
Parenthetically, the rule is that where the law
does not make any exception, courts may not
except something unless compelling reasons
exist to justify it (Phil. British Assurance Co.,
Inc. v. IAC, 150 SCRA 520 [1987]).
More importantly, it is well established that
courts may avail themselves of the actual
proceedings of the legislative body to assist in
determining the construction of a statute of
doubtful meaning (Palanca v. City of Manila,
41 Phil. 125 [1920]). Thus, where there is
doubt as to what a provision of a statute
means, the meaning put to the provision
during the legislative deliberation or

discussion on the bill may be adopted (Arenas

v. City of San Carlos, 82 SCRA 318 [1978]).
The records of the Batasan, Vol. III,
unmistakably show that the intention of the
lawmakers is to apply the law to whatever
currency may be the subject thereof. The
discussion on the floor of the then Batasang
Pambansa fully sustains this view, as follows:
xxx xxx xxx
"THE
SPEAKER. The
Gentleman from Basilan is
recognized.
"MR. TUPAY. Parliamentary
inquiry. Mr. Speaker.
"THE
SPEAKER. The
Gentleman may proceed.
"MR. TUPAY. Mr. Speaker, it
has been mentioned by one of
the
Gentlemen
who
interpellated that any check
may be involved, like U.S.
dollar checks, etc. We are
talking about checks in our
country. There are U.S. dollar
checks, checks in our
currency, and many others.
"THE
SPEAKER. The
Sponsor may answer that
inquiry.
"MR. MENDOZA. The bill
refers to any check, Mr.
Speaker, and this check may
be a check in whatever
currency. This would not

even be limited to U.S. dollar

checks. The check may be in
French francs or Japanese
yen or deutschunorhs. (sic.) If
drawn, then this bill will
apply.
"MR. TUPAY. So, it include
U.S. dollar checks.
"MR.
MENDOZA. Yes,
Mr. Speaker."
xxx xxx xxx
(p. 1376, Records of the
Batasan,
Volume
III;
Emphasis
supplied,
for
emphasis).
PREMISES CONSIDERED, the petition is
DISMISSED for lack of merit.
SO ORDERED.
||| (De Villa v. Court of Appeals, G.R. No.
87416, [April 8, 1991], 273 PHIL 89-97)
[G.R. No. L-14787. January 28, 1961.]
COLGATE-PALMOLIVE
PHILIPPINES,
INC., petitioner, vs. HON. PEDRO
M. GIMENEZ as AUDITOR
GENERAL and ISMAEL MATHAY
as AUDITOR OF THE CENTRAL
BANK
OF
THE
PHILIPPINES, respondents.
SYLLABUS

1. STATUTORY CONSTRUCTION; RULE

THAT GENERAL TERMS MAY BE
RESTRICTED BY SPECIFIC WORDS; TO
WHAT CASES APPLICABLE. The
principle that "general terms may be restricted
by specific words, with the result that the
general language will be limited by the
specific language, which indicates the statute's
object and purpose" is applicable only to cases
where, except for one general term, all the
items in an enumeration belong to or fall
under one specific class.
2. ID.; RULE THAT GENERAL TERMS
ARE
LIMITED
BY
PARTICULAR
RECITALS; INTENTION OF THE RULE.
The rule of construction that general and
unlimited terms are restrained and limited by
particular recitals, when used in connection
with them, does not require the rejection of
general terms entirely. It is intended merely as
an aid in ascertaining the intention of the
legislature and is to be taken in connection
with other rules of construction.

DECISION

GUTIERREZ DAVID, J p:
The petitioner Colgate-Palmolive Philippines,
Inc., is a corporation duly organized and
existing under Philippine laws engaged in the
manufacture of toilet preparations and
household remedies. On several occasions, it
imported from abroad various materials such
as irish moss extract, sodium benzoate,
sodium saccharinate, precipitated calcium

carbonate and dicalcium phosphate, for use as

stabilizers and flavoring of the dental cream it
manufactures. For every importation made of
these materials, the petitioner paid to the
Central Bank of the Philippines the 17%
special excise tax on the foreign exchange
used for the payment of the cost,
transportation and other charges incident
thereto, pursuant to Republic Act No. 601, as
amended, commonly known as the Exchange
Tax Law.
On March 14, 1956, the petitioner filed with
the Central Bank three applications for refund
of the 17% special excise tax it had paid in the
aggregate sum of P113,343.99. The claim for
refund was based on section 2 of Republic Act
601, which provides that "foreign exchange
used for the payment of the cost,
transportation and/or other charges incident to
the importation into the Philippines of . . .
stabilizer and flavors . . . shall be refunded to
any importer making application therefor,
upon satisfactory proof of actual importation
under the rules and regulations to be
promulgated pursuant to section seven
thereof." After the applications were processed
by the Officer in-Charge of the Exchange Tax
Administration of the Central Bank, that
official advised the petitioner that of the total
sum of P113,343.99 claimed by it for refund,
the amount of P23,958.13 representing the
17% special excise tax on the foreign
exchange used to import irish moss extract,
sodium benzoate and precipitated calcium
carbonate had been approved. The auditor of
the Central Bank, however, refused to pass in
audit its claims for refund even for the reduced
amount fixed by the Officer-in-Charge of the

Exchange Tax Administration, on the theory

that toothpaste stabilizers and flavors are not
exempt under section 2 of the Exchange Tax
Law.
Petitioner appealed to the Auditor General, but
the latter on December 4, 1958 affirmed the
ruling of the auditor of the Central Bank,
maintaining that the term "stabilizer and
flavors" mentioned in section 2 of the
Exchange Tax Law refers only to those used in
the preparation or manufacture of food or food
products. Not satisfied, the petitioner brought
the case to this Court thru the present petition
for review.
The decisive issue to be resolved is whether or
not the foreign exchange used by petitioner for
the importation of dental cream stabilizers and
flavors is exempt from the 17% special excise
tax imposed by the Exchange Tax Law
(Republic Act No. 601) so as to entitle it to
refund under section 2 thereof, which reads as
follows:
"SEC. 2. The tax collected
under the preceding section
on foreign exchange used for
the payment of the cost,
transportation and/or other
charges
incident
to
importation
into
the
Philippines of rice, flour,
canned milk, cattle and beef,
canned fish, soya beans,
butter, fat, chocolate, malt
syrup, tapioca, stabilizer and
flavors, vitamin concentrate,
fertilizer
poultry
feed;
textbooks, reference books,

and supplementary readers

approved by the Board of
Textbooks and/or established
public or private educational
institutions;
newsprint
imported by or for publishers
for use in the publication of
books, pamphlets, magazines
and newspapers; book paper,
book cloth, chip board
imported for the printing of
supplementary
readers
(approved by the Board of
Textbooks) to be supplied to
the
Government
under
contracts perfected before the
approval of this Act, the
quantity thereof to be
certified by the Director of
Printing;
anesthetics,
antibiotics,
vitamins,
hormones, X-Ray films,
laboratory
reagents,
biologicals, dental supplies,
and pharmaceutical drugs
necessary for compounding
medicines;
medical
and
hospital supplies listed in the
appendix to this Act, in
quantities to be certified by
the Director of Hospitals as
actually needed by the
hospitals applying therefor;
drugs and medicines listed in
the said appendix; and such
other drugs and medicine as
may be certified by the
Secretary of Health from time
to time to promote and

protect the health of the

people of the Philippines
shall be refunded to any
importer making application
therefor, upon satisfactory
proof of actual importation
under
the
rules
and
regulations
to
be
promulgated pursuant to
section
seven
thereof ."
(Emphasis supplied.)
The ruling of the Auditor General that the term
"stabilizer and flavors" as used in the law
refers only to those materials actually used in
the preparation or manufacture of food and
food products is based, apparently, on the
principle of statutory construction that
"general terms may be restricted by specific
words, with the result that the general
language will be limited by the specific
language which indicates the statute's object
and purpose." (Statutory Construction by
Crawford, 1940 ed. p. 324-325.) The rule,
however, is, in our opinion, applicable only to
cases where, except for one general term, all
the items in an enumeration belong to or fall
under one specific class. In the case at bar, it is
true that the term "stabilizer and flavors" is
preceded by a number of articles that may be
classified as food or food products, but it is
likewise true that the other items immediately
following it do not belong to the same
classification. Thus "fertilizer" and "poultry
feed" do not fall under the category of food or
food products because they are used in the
farming and poultry industries, respectively.
"Vitamin concentrate" appears to be more of a
medicine than food or food product, for, as a

matter of fact, vitamins are among those

enumerated in the list of medicines and drugs
appearing in the appendix to the law. It should
also here be stated that "cattle", which is
among those listed preceding the term in
question, includes not only those intended for
slaughter but also those for breeding purposes.
Again, it is noteworthy that under Republic
Act 814 amending the above-quoted section of
Republic Act No. 601, "industrial starch",
which does not always refer to food for human
consumption, was added among the items
grouped with stabilizer and flavors". Thus, on
the basis of the grouping of the articles alone,
it cannot validly be maintained that the term
"stabilizer and flavors" as used in the abovequoted provision of the Exchange Tax Law
refers only to those used in the manufacture of
food and food products. This view is
supported by the principle "Ubi lex non
distinguit nec nos distinguire debemos", or
"where the law does not distinguish, neither
do we distinguish". (Ligget & Myers Tobacco
Company vs. Collector of Internal Revenue,
53 Off. Gaz. [15], page 4831). Since the law
does not distinguish between "stabilizer and
flavors" used in the preparation of food and
those used in the manufacture of toothpaste or
dental cream, we are not authorized to make
any distinction and must construe the words in
their general sense. The rule of construction
that general and unlimited terms are restrained
and limited by particular recitals when used in
connection with them, does not require the
rejection of general terms entirely. It is
intended merely as an aid in ascertaining the
intention of the legislature and is to be taken
in connection with other rules of construction.
(See Handbook of the Construction and

Interpretation of Laws by Black, p. 215-216,

2nd ed.)
Having arrived at the above conclusion, we
deem it now idle to pass upon the other
questions raised by the parties.
WHEREFORE, the decision under review is
reversed and the respondents are hereby
ordered to audit petitioner's applications for
refund which were approved by the Officer-InCharge of the Exchange Tax Administration in
the total amount of P23,958.13.
||| (Colgate-Palmolive Phil., Inc. v. Gimenez,
G.R. No. L-14787, [January 28, 1961], 110
PHIL 874-878)
[G.R. No. 89483. August 30, 1990.]
REPUBLIC OF THE PHILIPPINES
THRU:
THE
PRESIDENTIAL
COMMISSION
ON
GOOD
GOVERNMENT (PCGG), AFP ANTIGRAFT BOARD, COL. ERNESTO A.
PUNSALANG
and
PETER
T.
TABANG, petitioners, vs. HON.
EUTROPIO MIGRINO, as Presiding
Judge, Regional Trial Court, NCJR,
Branch 151, Pasig, Metro Manila and
TROADIO TECSON, respondents.

DECISION

CORTES, J p:

This case puts in issue the authority of the

Presidential
Commission
on
Good
Government (PCGG), through the New Armed
Forces of the Philippines Anti-Graft Board
(hereinafter referred to as the "Board"), to
investigate and cause the prosecution of
petitioner, a retired military officer, for
violation of Republic Acts Nos. 3019 and
1379.
Assailed by the Republic in this petition for
certiorari, prohibition and/or mandamus with
prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order
are the orders of respondent judge in Civil
Case No. 57092 Branch 151 of the Regional
Trial Court of Pasig, Metro Manila: (1) dated
June 23, 1989, denying petitioners' Motion to
Dismiss and Opposition, and (2) dated June
26, 1989, granting private respondent's
application for the issuance of a writ of
preliminary injunction. Thus, the petition
seeks the annulment of the two orders, the
issuance of an injunction to enjoin respondent
judge from proceeding with Civil Case No.
57092 and, finally, the dismissal of the case
before the trial court.
The controversy traces its roots to the order of
then PCGG Chairman Jovito R. Salonga,
dated May 13, 1986, which created the New
Armed Forces of the Philippines Anti-Graft
Board. The Board was created to "investigate
the unexplained wealth and corrupt practices
of AFP personnel, both retired and in active
service." The order further stated that "[t]he
Board shall be primarily charged with the task
of investigating cases of alleged violations of
the Anti-Graft
and
Corrupt
Practices
Act (Republic Act No. 3019, as amended) and

shall make the necessary recommendations to

appropriate
government
agencies
and
instrumentalities with respect to the action to
be taken thereon based on its findings."
Acting on information received by the Board,
which indicated the acquisition of wealth
beyond his lawful income, private respondent
Lt. Col. Troadio Tecson (ret.) was required by
the Board to submit his explanation/comment
together with his supporting evidence by
October 31, 1987 [Annex "B", Petition].
Private respondent requested, and was
granted, several postponements, but was
unable to produce his supporting evidence
because they were allegedly in the custody of
his bookkeeper who had gone abroad.
Just the same, the Board proceeded with its
investigation and submitted its resolution,
dated June 30, 1988, recommending that
private respondent be prosecuted and tried for
violation of Rep. Act No. 3019, as amended,
andRep. Act No. 1379, as amended. llcd
The case was set for preliminary investigation
by the PCGG. Private respondent moved to
dismiss the case on the following grounds: (1)
that the PCGG has no jurisdiction over his
person; (2) that the action against him
underRep. Act No. 1379 has already
prescribed; (3) that E.O. No. 14, insofar as it
suspended the provisions of Rep. Act No.
1379 on prescription of actions, was
inapplicable to his case; and (4) that having
retired from the AFP on May 9, 1984, he was
now beyond the reach of Rep. Act No. 3019.
The Board opposed the motion to dismiss.

In a resolution dated February 8, 1989, the

PCGG denied the motion to dismiss for lack
of merit. Private respondent moved for
reconsideration but this was denied by the
PCGG in a resolution dated March 8, 1989.
Private respondent was directed to submit his
counter-affidavit and other controverting
evidence on March 20, 1989 at 2:00 p.m.
On March 13, 1989, private respondent filed a
petition for prohibition with preliminary
injunction with the Regional Trial Court in
Pasig, Metro Manila. The case was docketed
as Case No. 57092 and raffled to Branch 151,
respondent judge's court. Petitioner filed a
motion to dismiss and opposed the application
for the issuance of a writ of preliminary
injunction on the principal ground that the
Regional Trial Court had no jurisdiction over
the Board, citing the case of PCGG v.
Pea, G.R. No. 77663, April 12, 1988, 159
SCRA 556. Private respondent opposed the
motion to dismiss. Petitioner replied to the
opposition.
On June 23, 1989, respondent judge denied
petitioner's motion to dismiss. On June 26,
1989, respondent judge granted the application
for the issuance of a writ of preliminary
injunction,
enjoining
petitioners
from
investigating
or
prosecuting
private
respondent under Rep. Acts Nos. 3019 and
1379 upon the filing of a bond in the amount
of Twenty Thousand Pesos (P20,000.00).
Hence, the instant petition.
On August 29, 1989, the Court issued a
restraining order enjoining respondent judge
from enforcing his orders dated June 23, 1989

and June 26, 1989 and from proceeding with

Civil Case No. 57092.
Private respondent filed his comment, to
which petitioners filed a reply. A rejoinder to
the reply was filed by private respondent. The
Court gave due course to the petition and the
parties filed their memoranda. Thereafter, the
case was deemed submitted.
The issues raised in the petition are as follows:
I.
WHETHER
OR
NOT
RESPONDENT
JUDGE
GRAVELY ABUSED HIS
DISCRETION OR ACTED
WITHOUT OR IN EXCESS
OF
JURISDICTION
IN
ASSUMING JURISDICTION
OVER AND INTERFERING
WITH THE ORDERS AND
FUNCTIONS
OF
THE
PRESIDENTIAL
COMMISSION ON GOOD
GOVERNMENT.
II.
WHETHER,
OR
NOT
RESPONDENT
JUDGE
GRAVELY ABUSED HIS
DISCRETION OR ACTED
WITHOUT OR IN EXCESS
OF
JURISDICTION
IN
ISSUING THE ASSAILED
ORDER DATED JUNE 26,
1989
ENJOINING
PETITIONERS
FROM
INVESTIGATING
AND

PROSECUTING PRIVATE
RESPONDENT
FOR
VIOLATION
OF
REPUBLIC ACT NO. 3019,
OTHERWISE
KNOWN
AS ANTI-GRAFT
AND
CORRUPT
PRACTICES
ACT AND REPUBLIC ACT
NO. 1379, OTHERWISE
KNOWN AS AN ACT FOR
THE
FORFEITURE
OF
UNLAWFULLY ACQUIRED
PROPERTY [Rollo, p. 19].
As to the first issue, petitioner contends that
following the ruling of the Court in PCGG v.
Pea the Board, being a creation and/or
extension of the PCGG, is beyond the
jurisdiction of the Regional Trial Court. On
the second issue, petitioner strongly argues
that the private respondent's case falls within
the jurisdiction of the PCGG.
The pivotal issue is the second one. On this
point, private respondent's position is as
follows:
1. . . . he is not one of the
subordinates contemplated in
Executive
Orders
1 , 2 , 14 and 14-A as the
alleged illegal acts being
imputed to him, that of
alleged amassing wealth
beyond his legal means while
Finance Officer of the
Philippine Constabulary, are
acts of his own alone, not
connected with his being a
crony, business associate, etc.

or subordinate as the petition

does not allege so. Hence the
PCGG has no jurisdiction to
investigate him.
If indeed private respondent
amassed wealth beyond his
legal means, the procedure
laid down by Rep. Act
1379 as already pointed out
before be applied. And since,
he has been separated from
the government more than
four years ago, the action
against him under Republic
Act
1379 has
already
prescribed.
2. . . . no action can be filed
anymore against him now
under Republic Act 1379 for
recovery of unexplained
wealth for the reason that he
has retired more than four
years ago.
3. . . . The order creating the
AFP
Anti-Graft
Board
(Annex "A", Petition) is null
and void. Nowhere in
Executive
Orders
1, 2, 14 and 14-A is there any
authority given to the
commission, its chairman and
members, to create Boards or
bodies to be invested with
powers similar to the powers
invested with the commission
.. [Comment, pp. 6-7; Rollo,
pp. 117-118].

1. The most important question to be resolved

in this case is whether or not private
respondent may be investigated and caused to
be prosecuted by the Board, an agency of the
PCGG, for violation of Rep. Acts Nos. 3019
and 1379. According to petitioners, the PCGG
has the power to investigate and cause the
prosecution of private respondent because he
is a "subordinate" of former President Marcos.
They cite the PCGG's jurisdiction over
(a) The recovery of all illgotten wealth accumulated by
former President Ferdinand
E. Marcos, his immediate
family,
relatives, subordinates and
close associates, whether
located in the Philippines or
abroad,
including
the
takeover or sequestration of
all business enterprises and
entities owned or controlled
by
them, during
his
administration, directly or
through nominees, by taking
undue advantage of their
public office and/or using
their
powers,
authority,
influence, connections or
relationship. [E.O. No. 1,
sec. 2.].
Undoubtedly,
the
alleged
unlawful
accumulation of wealth was done during the
administration of Pres. Marcos. However,
what has to be inquired into is whether or not
private respondent acted as a "subordinate" of
Pres. Marcos within the contemplation of E.O.

No. 1, the law creating the PCGG, when he

allegedly unlawfully acquired the properties.
A close reading of E. O. No. 1 and related
executive orders will readily show what is
contemplated within the term "subordinate."
The Whereas Clauses of E. O. No. 1 express
the urgent need to recover the ill-gotten wealth
amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and
close associates both here and abroad.
E.O. No. 2 freezes "all assets and properties in
the Philippines in which former President
Marcos and/or his wife, Mrs. Imelda
Romualdez Marcos, their close relatives,
subordinates, business associates, dummies,
agents, or nominees have any interest or
participation."
Applying the rule in statutory construction
known as ejusdem generis, that is
[W]here
general
words
follow an enumeration of
persons or things, by words
of a particular and specific
meaning, such general words
are not to be construed in
their widest extent, but are to
be held as applying only to
persons or things of the same
kind or class as those
specifically
mentioned
[Smith, Bell & Co., Ltd. v.
Register of Deeds of Davao,
96 Phil. 53, 58 (1954), citing
Black on Interpretation of
Laws, 2nd Ed., 203].

the term "subordinate" as used in E.O.

Nos. 1 and 2 would refer to one who
enjoys a close association or relation with
former Pres. Marcos and/or his wife,
similar to the immediate family member,
relative, and close associate in E.O. No.
1 and the close relative, business associate,
dummy, agent, or nominee in E.O. No. 2.
Thus, as stated by the Court in Bataan
Shipyard & Engineering Co., Inc. v.
PCGG, G.R. No. 75885, May 27, 1987, 150
SCRA 181, 205-206.
The situations envisaged and
sought to be governed
[by Proclamation
No.
3 and E.O. Nos. 1, 2 and 14]
are self-evident, these being:
1) that "(i)ll gotten properties
(were) amassed by the leaders
and supporters of the
previous regime";
a) more
particularly, that "(i)llgotten wealth (was)
accumulated
by
former
President
Ferdinand E. Marcos,
his immediate family,
relatives,
subordinates,
and
close associates, . . .
located
in
the
Philippines or abroad,
xx (and) business
enterprises
and

entities (came to be)

owned or controlled
by them, during . . .
(the
Marcos)
administration,
directly or through
nominees, by taking
undue advantage of
their public office
and/or using their
powers,
authority,
influence, connections
or relationship;"

financial institutions,
or by taking undue
advantage of their
office,
authority,
influence, connections
or
relationship,
resulting in their
unjust enrichment and
causing grave damage
and prejudice to the
Filipino people and
the Republic of the
Philippines";

b) otherwise
stated, that "there are
assets and properties
pertaining to former
President Ferdinand
E. Marcos, and/or his
wife Mrs. Imelda
Romualdez Marcos,
their close relatives,
subordinates, business
associates, dummies,
agents or nominees
which had been or
were acquired by
them
directly
or
indirectly, through or
as a result of the
improper or illegal
use of funds or
properties owned by
the Government of the
Philippines or any of
its
branches,
instrumentalities,
enterprises, banks or

c) that "said
assets and properties
are in the form of
bank
accounts,
deposits,
trust
accounts, shares of
stocks,
buildings,
shopping
centers,
condominiums,
mansions, residences,
estates, and other
kinds of real and
personal properties in
the Philippines and in
various countries of
the world;" and.
2) that certain "business
enterprises and properties
(were) taken over by the
government of the Marcos
Administration or by entities
or persons close to former
President
Marcos."
[Footnotes deleted].

It does not suffice, as in this case, that the

respondent is or was a government official or
employee during the administration of former
Pres. Marcos. There must be a prima
facie showing that the respondent unlawfully
accumulated wealth by virtue of his close
association or relation with former Pres.
Marcos and/or his wife. This is so because
otherwise the respondent's case will fall under
existing general laws and procedures on the
matter.Rep. Act No. 3019, the Anti-Graft and
Corrupt Practices Act, penalizes the corrupt
practices of any public officer. Under Rep. Act
No. 1379 (An Act Declaring Forfeited in
Favor of the State Any Property Found to
Have Been Unlawfully Acquired By Any
Public Officer or Employee and Providing for
the Procedure Therefor), whenever any public
officer or employee has acquired during his
incumbency an amount of property which is
manifestly out of proportion to his salary as
such public officer or employee and to his
other lawful income and the income from
legitimately acquired property, said property
shall be presumed prima facie to have been
unlawfully acquired [Sec. 2]. The Solicitor
General shall file the petition and prosecute
the case in behalf of the Republic, after
preliminary investigation by the provincial or
city prosecutor [Ibid].
Moreover, the record shows that private
respondent was being investigated for
unlawfully acquired wealth under Rep. Acts
Nos. 3019 and 1379, and not under E.O. Nos.
1, 2, 14 and 14-A.
Since private respondent was being
investigated by the PCGG through the AFP
Anti-Graft Board it would have been

presumed that this was under Rep. Acts Nos.

3019 and 1379 in relation to E.O. Nos.
1, 2, 14 and 14-A. But the record itself belies
this presumption:
(a) The letter of the chairman of the AFP AntiGraft Board to private respondent, dated
October 16, 1987, states: "This letter is in
connection with the alleged information
received by the AFP Anti-Graft Board
indicating your acquisition of wealth beyond
legal means of income in violation of Rep. Act
No. 3019 known as the Anti-Graft and Corrupt
Practices Act." [Rollo, p. 39].
(b) The Resolution dated June 30, 1988 of the
Board categorically states:
I. PRELIMINARY STATEMENT:
This refers to the case against
Col Troadio B. Tecson PC
(Ret) for alleged unexplained
wealth pursuant to R.A. 3019,
as
amended,
otherwise
known as Anti-Graft and
Corrupt
Practices
Act and R.A.
1379,
as
amended, otherwise known
as the "Act for Forfeiture of
Unlawfully
Acquired
Property." [Rollo, p. 43].
The resolution alleges that private respondent
unlawfully accumulated wealth by taking
advantage of his office as Finance Officer of
the Philippine Constabulary. No attempt is
made in the Board's resolution to link him or
his accumulation of wealth to former Pres.
Marcos and/or his wife.

(c) The letter of the Board chairman to the

chairman of the PCGG, dated July 28, 1988, is
clear:
Respectfully
transmitted
herewith for the prosecution
before the Sandiganbayan is
the case folder of COLONEL
TROADIO TECSON (Ret)
who
after
preliminary
investigation of the case by
the Board, found a prima
facie evidence against subject
officer for violating Section
8, R.A. 3019, as amended
by BP 195, otherwise known
as the Anti-Graft and Corrupt
Practices Act and R.A. 1379,
otherwise known as an Act
for
the
Forfeiture
of
Unlawfully
Acquired
Property." [Rollo, p. 46].
Moreover, from the allegations of petitioner in
its memorandum, it would appear that private
respondent accumulated his wealth for his
own account. Petitioner quoted the letter of
Ignacio Datahan, a retired PC sergeant, to
General Fidel Ramos, the material portion of
which reads:
. . . After an official in the
military unit received an
Allotment Advice the same
signed a cash advance
voucher, let us say in the
amount
of
P5,000.00.
Without much ado, outright,
Col. Tecson paid the amount.
The official concerned was

also made to sign the receipt

portion on the voucher the
amount of which was left
blank. Before the voucher is
passed for routine processing
by Mrs. Leonor Cagas, clerk
of Col. Tecson and its
facilitator, the maneuver
began. The amount on the
face of the cash advance
voucher
is
altered
or
superimposed. The original
amount of P5,000.00 was
now made say, P95,000.00.
So it was actually the amount
of P95,000.00 that appeared
on the records. The difference
of P90,000.00 went to the
syndicate.
. . . Boy Tanyag, bookkeeper
in Col. Tecson's office took
care of the work.
. . . In the liquidation of the
altered cash advance amount,
names of persons found in the
Metropolitan
Manila
Telephone Directory with
fictitious addresses appeared
as recipients or payees.
Leonor and Boy got their
shares on commission basis
of the looted amount while
the greater part went to Col.
Tecson. [Rollo, pp. 184-185.].
Clearly, this alleged unlawful
accumulation of wealth is not that

contemplated in E.O. Nos. 1, 2, 14 and 14A.

2. It will not do to cite the order of the PCGG
Chairman, dated May 13, 1986, creating the
Board and authorizing it to investigate the
unexplained wealth and corrupt practices of
AFP personnel, both retired and in active
service, to support the contention that PCGG
has jurisdiction over the case of private
respondent. The PCGG cannot do more than
what it was empowered to do. Its powers are
limited. Its task is limited to the recovery of
the ill-gotten wealth of the Marcoses, their
relatives and cronies. The PCGG cannot,
through an order of its chairman, grant itself
additional powers powers not contemplated
in its enabling law.
3. Petitioner assails the trial court's cognizance
of the petition filed by private respondent.
Particularly, petitioner argues that the trial
court cannot acquire jurisdiction over the
PCGG. This matter has already been settled
inPea, supra, where the Court ruled that
those who wish to question or challenge the
PCGG's acts or orders must seek recourse in
the Sandiganbayan, which is vested with
exclusive and original jurisdiction. The
Sandiganbayan's decisions and final orders are
in turn subject to review on certiorari
exclusively by this Court. [Ibid, at pp. 564565].
The ruling in Pea was applied in PCGG v.
Aquino, G.R. No. 77816, June 30, 1988, 163
SCRA 363, Soriano III v. Yuson, G.R. No.
74910 (and five other cases), August 10, 1988,
164 SCRA 226 and Olaguer v. RTC, NCJR,
Br. 48, G.R. No. 81385, February 21, 1989,

170 SCRA 478, among others, to enjoin the

regional trial courts from interfering with the
actions of the PCGG.
Respondent judge clearly acted without or in
excess of his jurisdiction when he took
cognizance of Civil Case No. 57092 and
issued the writ of preliminary injunction
against the PCGG.
4. Thus, we are confronted with a situation
wherein the PCGG acted in excess of its
jurisdiction and, hence, may be enjoined from
doing so, but the court that issued the
injunction against the PCGG has not been
vested by law with jurisdiction over it and,
thus, the injunction issued was null and void.
The nullification of the assailed order of
respondent judge issuing the writ of
preliminary injunction is therefore in order.
Likewise, respondent judge must be enjoined
from proceeding with Civil Case No. 57092.
But in view of the patent lack of authority of
the PCGG to investigate and cause the
prosecution of private respondent for violation
of Rep. Acts Nos. 3019 and 1379, the PCGG
must also be enjoined from proceeding with
the case, without prejudice to any action that
may be taken by the proper prosecutory
agency. The rule of law mandates that an
agency of government be allowed to exercise
only the powers granted it.
5. The pronouncements made above should
not be taken to mean that the PCGG's creation
of the AFP Anti-Graft Board is a nullity and
that the PCGG has no authority to investigate

and cause the prosecution of members and

former members of the Armed Forces of the
Philippines for violations of Rep. Acts Nos.
3019 and 1379. The PCGG may investigate
and cause the prosecution of active and retired
members of the AFP for violations of Rep.
Acts Nos. 3019 and 1379 only in relation
to E.O. Nos. 1, 2, 14 and 14-A, i.e., insofar as
they involve the recovery of the ill-gotten
wealth of former Pres. Marcos and his family
and "cronies." But the PCGG would not have
jurisdiction over an ordinary case falling under
Rep. Acts Nos. 3019 and 1379, as in the case
at bar. E.O. Nos. 1, 2, 14 and 14-A did not
envision the PCGG as the investigator and
prosecutor of all unlawful accumulations of
wealth. The PCGG was created for a specific
and limited purpose, as we have explained
earlier, and necessarily its powers must be
construed with this in mind.
6. n his pleadings, private respondent contends
that he may no longer be prosecuted because
of prescription. He relies on section 2 of Rep.
Act No. 1379 which provides that "[t]he right
to file such petition [for forfeiture of
unlawfully acquired wealth] shall prescribe
within four years from the date of resignation,
dismissal or separation or expiration of the
term of the officer or employee concerned."
He retired on May 9, 1984, or more than six
(6) years ago. However, it must be pointed out
that section 2 of Rep. Act No. 1379 should be
deemed amended or repealed by Article XI,
section 15 of the 1987 Constitution which
provides that "[t]he right of the State to
recover properties unlawfully acquired by
public officials or employees, from them or
from their nominees or transferees, shall not

be barred by prescription, laches, or estoppel."

Considering that sec. 2 of Rep. Act No.
1379was deemed amended or repealed before
the prescriptive period provided therein had
lapsed insofar as private respondent is
concerned, we cannot say that he had already
acquired a vested right that may not be
prejudiced by a subsequent enactment.
Moreover, to bar the Government from
recovering ill-gotten wealth would result in
the validation or legitimization of the unlawful
acquisition, a consequence at variance with
the clear intent of Rep. Act No. 1379, which
provides: Cdpr
SEC.
11. Laws
on
prescription. The laws
concerning
acquisitive
prescription and limitation of
actions cannot be invoked by,
nor shall they benefit the
respondent, in respect to any
property unlawfully acquired
by him.
Thus, we hold that the appropriate prosecutory
agencies, i.e., the city or provincial prosecutor
and the Solicitor General under sec. 2 of Rep.
Act No. 1379, may still investigate the case
and file the petition for the forfeiture of
unlawfully acquired wealth against private
respondent, now a private citizen. (On the
other hand, as regards respondents for
violations of Rep. Acts Nos. 3019 and 1379
who are still in the government service, the
agency granted the power to investigate and
prosecute them is the Office of the
Ombudsman
[Rep. Act
No.
6770]).
Under Presidential Decree No. 1606, as

amended,
and Batas
Pambansa
Blg.
195 violations of Rep. Acts Nos. 3019 and
1379 shall be tried by the Sandiganbayan.
7. The Court hastens to add that this decision
is without prejudice to the prosecution of
private respondent under the pertinent
provisions of the Revised Penal Code and
other related penal laws.
WHEREFORE, the order of respondent judge
dated June 26, 1989 in Civil Case No. 57092
is NULLIFIED and SET ASIDE. Respondent
judge is ORDERED to dismiss Civil Case No.
57092. The temporary restraining order issued
by the Court on August 29, 1989 is MADE
PERMANENT. The PCGG is ENJOINED
from proceeding with the investigation and
prosecution of private respondent in I.S. No.
37, without prejudice to his investigation and
prosecution by the appropriate prosecutory
agency.
SO ORDERED.
||| (Republic v. Migrino, G.R. No. 89483,
[August 30, 1990], 267 PHIL 337-352)
[G.R. Nos. L-48886-88. July 21, 1993.]
COMMISSIONER
OF
CUSTOMS, petitioner, vs. COURT
OF TAX APPEALS and LITONJUA
SHIPPING COMPANY represented
by Granexport Corporation as subagent, respondent.
SYLLABUS

1. STATUTORY CONSTRUCTION; WHERE

A STATUTE, BY ITS TERMS IS
EXPRESSLY LIMITED TO CERTAIN
MATTERS,
IT
MAY
NOT
BY
INTERPRETATION OR CONSTRUCTION,
BE EXTENDED TO OTHERS. It is a
settled rule of statutory construction that the
express mention of one person, thing, act, or
consequence excludes all others. This rule is
expressed in the familiar maxim expressio
unius est exclusio alterius. Where a statute, by
its terms, is expressly limited to certain
matters, it may not, by interpretation or
construction, be extended to others. The rule
proceeds from the premise that the legislature
would not have made specified enumerations
in a statute had the intention been not to
restrict its meaning and to confine its terms to
those expressly mentioned (Agpalo, Statutory
Construction, 2nd Ed., 1990, pp. 160-161, and
the cases therein cited).
2. ID.; ID.; RULE APPLIED TO CUSTOMS
CIRCULAR NO. 33 73 AND
IN EXECUTIVE
ORDER
NO.
72 REGARDING LIST OF NATIONAL
PORTS. The port of Kiwalan not being
included in the list of national ports appended
to Customs Memorandum Circular No. 3373 nor in Executive Order No. 72, it follows
inevitably as a matter of law and legal
principle that this Court may not properly
consider said port as a national port. To do
otherwise would be to legislate on our part and
to arrogate unto unto ourselves powers not
conferred on us by the constitution. Plainly,
therefore, the port of Kiwalan is not a national
port.

3. TAXATION; TARIFF AND CUSTOMS

CODE; BERTHING CHARGES; DOCTRINE
ON
LUZON
STEVEDORING
CORPORATION v. COURT
OF
TAX
APPEALS, ET AL. (18 SCRA 436 [1966]),
NO LONGER APPLICABLE. Petitioner
maintains that regardless of whether or not the
port of Kiwalan is a national port, berthing
charges may still be collected by the Bureau of
Customs from vessels berthing at said port,
citing the case of Luzon Stevedoring
Corporation vs. Court of Tax Appeals and
Commissioner of Customs (18 SCRA 436
[1966]), where is was held: Adverting to the
terms of the law, it is quite apparent that the
government's right to collect berthing charges
is not planted upon the condition that the pier
be publicly owned. The statute employs the
word pier without more. Nothing there said
speaks of private or public pier. Where the law
does not exact the nature of ownership as a
condition, that condition should not be read
into the law. We are not to indulge in statutory
construction. Because the law is clear. Our
plain duty is to apply the law as it is written.
So applying, we rule that berthing or mooring
charges here were properly collected. The
above ruling, however, is no longer effective
and can not apply in the case at bar for the
same was decided before the Tariff and
Customs Code was amended by Presidential
Decree No. 34 which took effect thirty days
from October 27, 1972, the date of
promulgation.
4. ID.; ID.; AMENDMENT IN SECTION
2910 THEREOF; INSERTION OF WORD
"NATIONAL" BEFORE THE WORD PORT
INDICATES
CLEAR
LEGISLATIVE

INTENT TO CHANGE MEANING OF

PROVISION. It will be seen that the word
"national" before the word "port" is inserted in
Section 2901 of the Tariff and Customs Code
by Presidential Decree No. 34. The change in
phraseology by amendment of a provision of
law indicates a legislative intent to change the
meaning of the provision from that it
originally had (Agpalo, supra, p. 76). The
insertion of the word "national" before the
word "port" is a clear indication of the
legislative intent to change the meaning of
Section 2901 from what is originally meant,
and not a mere surplusage as contended by
petitioner, in the sense that the change "merely
affirms what customs authorities had been
observing long before the law was amended."
It is the duty of this Court to give meaning to
the amendment. It is, therefore, our considered
opinion that under Section 2901 of the Tariff
and
Customs
Code,
as
amended
by Presidential Decree No. 34, only vessels
berthing at national ports are liable for
berthing fees. Thus, no berthing charges may
be collected from vessels moored at municipal
ports nor may berthing charges be imposed by
a municipal council (Tejan's Commentaries on
the Revised Tariff and Customs Code, p. 2486,
citing Circular Letter No. 2981 dated
September 30, 1958 quoting Op. No. 122, s. of
1958 and Op. No. 373, s. of 1940, Sec. of
Justice). The subject vessels, not having
berthed at a national port but at the Port of
Kiwalan, which was constructed, operated,
and continues to be maintained by private
respondent Iligan Express Corporation, are not
subject to berthing charges, and petitioner
should refund the berthing fees paid by private
respondent.

5. ID.;
ID.;
BERTHING
FEES;
DIFFERENCES BETWEEN NATIONAL
PORTS AND MUNICIPAL PORTS. It is to
be stressed that there are differences between
national ports and municipal ports, namely: (1)
the maintenance of municipal ports is borne by
the municipality, whereas that of the national
ports is shouldered by the national
government; (2) municipal ports are created
by executive order, while national ports are
usually created by legislation; (3) berthing
fees are not collected by the government from
vessels berthing at municipal ports, while such
berthing fees are collected by the government
from vessels moored at national ports. The
berthing fees imposed upon vessels berthing at
national ports are applied by the national
government for the maintenance and repair of
said ports. The national government does not
maintain municipal ports which are solely
maintained by the municipalities or private
entities which constructed them, as in the case
at bar.

DECISION

MELO, J p:
This refers to a petition for review of the
decision dated July 28, 1978 of the Court of
Tax Appeals in C.T.A. Cases No. 2785, 2831
and 2832 which was promulgated prior to the
issuance on February 27, 1991, of Circular
No. 1-91 to the effect that appeals from a final
order or decision of the Court of Tax Appeals
shall be to the Court of Appeals. LexLib

The undisputed facts of the case as established

by the evidence and as found by respondent
Court of Tax Appeals, are as follows:

e) March 22-26, 1975, MS

"Pavel Rybin" P4,000.00
paid on April 3, 1975;

The berthing facilities of Iligan Bay Express

Corporation at Kiwalan were constructed and
improved and are operated and maintained
solely by and at the expense of Iligan Express
Corporation, a private corporation.

f) April 26-May 3, 1975, MS

"Caledonia" P7,000.00 on
May 7, 1975; and

The MS "Chozan Maru", MS "Samuel S", MS

"Ero", MS "Messinia", MS "Pavel Rybin", MS
"Caledonia", and MS "Leonidas" are vessels
engaged in foreign trade and represented in
the Philippines by private respondent Litonjua
Shipping
Company
with
Granexport
Corporation as its sub-agent.
On various dates, the berthing facilities of the
Iligan Bay Express Corporation at Kiwalan,
Iligan City were used by the above vessels and
were assessed berthing fees by the Collector
of Customs which were paid by private
respondent under protest, to wit:
a) June 7, 1973, MS "Chozan
Maru" P2,551.00 paid on
April 17, 1973;
b) April 27, 1973, MS
"Samuel S" P8,000.00
paid on May 9, 1973;
c) May 27, 1973, MS "Ero"
P5,000.00 paid on June 4,
1973;
d) June
2,
1973
MS
"Messinia" P5,000.00 paid
on June 11, 1973;

or pier, is liable to the payment of the berthing

charge under Section 2901 of the Tariff and
Customs Code, which, as amended
by Presidential Decree No. 34, reads:

g) May 25-June 3, 1975, MS

"Caledonia" P9,000.00
paid on June 7, 1975.
Private respondent filed cases before the
Bureau of Customs for refund of the berthing
fees paid under protest. The Collector of
Customs of the City of Iligan denied the
protests, prompting private respondent to
appeal to the Commissioner of Customs who,
however, affirmed the decision of the
Collector of Customs.
Private respondent then resorted to the Court
of Tax Appeals. Consolidating the protests, the
tax court, thereafter rendered a decision on
July 28, 1978, the dispositive portion of which
reads as follows:
WHEREFORE, the decisions
appealed from are hereby
reversed and respondent
Commissioner of Customs is
ordered
to
refund
to
petitioner the amount of
P40,551.00. No costs. (p. 51,
Rollo)
Hence, the present recourse
Commissioner of Customs.

by

the

The only issue involved in this petition for

review is: Whether a vessel engaged in foreign
trade, which berths at a privately owned wharf

SEC. 2901. Definition.

Berthing charge is the amount
assessed against a vessel for
mooring or berthing at a pier,
wharf, bulk-head-wharf, river
or channel marginal wharf at
any national port in the
Philippines; or for mooring or
making fast to a vessel so
berthed; or for coming or
mooring within any slip,
channel, basin, river or canal
under the jurisdiction of any
national
port
of
the
Philippines:
Provided,
however, That in the last
instance, the charge shall be
fifty (50%) per cent of rates
provided for in cases of piers
without cargo shed in the
succeeding sections. The
owner, agent, operator or
master of the vessel is liable
for this charge.
Petitioner Commissioner of Customs contends
that the government has the authority to
impose and collect berthing fees whether a
vessel berths at a private pier or at a national
port. On the other hand, private respondent
argues that the right of the government to
impose berthing fees is limited to national
ports only.

The governing law classifying ports into

national
ports
and
municipal
ports
is Executive Order No. 72, Series of 1936
(O.G. Vol. 35, No. 6, pp. 65-66). A perusal of
said executive order discloses the absence of
the port of Kiwalan in the list of national ports
mentioned therein.
Furthermore, Paragraph 1 of Executive Order
No. 72 expressly provides that "the
improvement and maintenance of national
ports shall be financed by the Commonwealth
Government, and their administration and
operation shall be under the direct supervision
and control of the Insular Collector of
Customs." It is undisputed that the port of
Kiwalan was constructed and improved and is
operated and maintained solely by and at the
expense of the Iligan Express Corporation,
and not by the National Government of the
Republic or any of its agencies or
instrumentalities.
Petitioner insists that Kiwalan is a national
port since it is within the jurisdiction of the
collection district and territorial limits of the
national port of Iligan City. The claim is put
forward that "Kiwalan simply cannot claim to
be an independent port within a national port
without infringing on the territorial
jurisdiction of the Port of Iligan", citing in
support thereof Customs Administrative Order
No. 1-76 dated February 23, 1976. However, a
reading of said administrative order shows that
it was issued merely for administrative
purposes redefining the jurisdictional limits of
each Customs Collection District "based on
the approved staffing pattern." It has nothing

to do with the collection of berthing fees. On

this point we quote with approval the
following conclusions of respondent Court of
Tax Appeals:
. . . we see no significance
therefore in the stand of
respondent, as averred as
affirmative
and
special
defenses of his answers, that
it is not necessary to list
Kiwalan as a national port
being already an integral part
of the national port of the city
of Iligan, within its territorial
limits,
jurisdiction
or
collection district. Such an
assertion,
besides
being
violative of the legal basis for
the classification of ports into
national
or
municipal
under Executive Order No.
72, series of 1936, as
implemented by subsequent
Republic Acts and Executive
Orders, would make all ports
in the Philippines national
ports. A port is not classified
as a national port just because
it is located within the
territorial limits or boundaries
of a city or municipality
where a national port is
situated, much less within the
jurisdiction or collection
district of a national port;
otherwise, all ports in the
Philippines
would
be
classified as national ports

without
any
ports. LLphil

municipal

xxx xxx xxx

. . . Customs Administrative
Order No. 1-72 dated
September 21, 1971, which is
entitled as defining the
jurisdictional
limits
of
customs collection districts,
divided the entire Philippines
into
thirty-four
(34)
collection districts. It bears
emphasis that no point or
locality in the Philippines is
not covered by a collection
district, or does not fall
within
the
territorial
jurisdiction or limits of a
collection district, with a
principal port of entry which
is always a national port
properly classified and listed
as such by law or executive
order. (pp. 47-48, Rollo)
The Bureau of Customs itself in its
Customs Memorandum Circular No. 3373 dated March 29, 1973, does not accord the
status of national port to the port of Kiwalan,
nor does the list of national ports appended
thereto include the port of Kiwalan. Moreover,
said memorandum circular indicates the
specific law (Public Act, Commonwealth Act,
Republic Act or Executive Order) creating a
particular national port. Petitioner has not
cited or brought to our attention, and we have
found none, any law creating Kiwalan Port as
a national port or converting it to one.

It is a settled rule of statutory construction that

the express mention of one person, thing, act,
or consequence excludes all others. This rule
is expressed in the familiar maxim expressio
unjus est exclusio alterius. Where a statute, by
its terms, is expressly limited to certain
matters, it may not, by interpretation or
construction, be extended to others. The rule
proceeds from the premise that the legislature
would not have made specified enumerations
in a statute had the intention been not to
restrict its meaning and to confine its terms to
those expressly mentioned (Agpalo, Statutory
Construction, 2nd Ed., 1990, pp. 160-161, and
the cases therein cited). The port of Kiwalan
not being included in the list of national ports
appended to Customs Memorandum Circular
No. 33-73 nor in Executive Order No. 72, it
follows inevitably as a matter of law and legal
principle that this Court may not properly
consider said port as a national port. To do
otherwise would be to legislate on our part and
to arrogate unto ourselves powers not
conferred on us by the Constitution.
Even the Bureau of Customs in its
Customs Memorandum Circular No. 4773 held
It appearing that Banago
Wharf in Bacolod City is not
one of those listed as a
national port, the said port
should be considered a
municipal, pursuant to the
provisions
of Executive
Order No. 72 series of 1936.
Berthing charges therefore
may not be collected from
vessels docking thereat. (p. 3,

Customs Memorandum
Circular No. 47-73)
Plainly, therefore, the port of Kiwalan is not a
national port. However, petitioner maintains
that regardless of whether or not the port of
Kiwalan is a national port, berthing charges
may still be collected by the Bureau of
Customs from vessels berthing at said port,
citing the case of Luzon Stevedoring
Corporation vs. Court of Tax Appeals and
Commissioner of Customs (18 SCRA 436
[1966]), where it was held:
Adverting to the terms of the
law, it is quite apparent that
the government's right to
collect berthing charges is not
planted upon the condition
that the pier be publicly
owned. The statute employs
the word pier without
more. Nothing there said
speaks
of private or public pier.
Where the law does not exact
the nature of ownership as a
condition, that condition
should not be read into the
law. We are not to indulge in
statutory
construction.
Because the law is clear. Our
plain duty is to apply the law
as it is written. So applying,
we rule that berthing or
mooring charges here were
properly collected. (at pp.
438-439.) LexLib

The above ruling, however, is no longer

effective and can not apply in the case at bar
for the same was decided before the Tariff and
Customs Code was amended by Presidential
Decree No. 34 which took effect thirty days
from October 27, 1972, the date of
promulgation.
Section 2901 of the Tariff and Customs Code
prior to its amendment and said section as
amended by Presidential Decree No. 34 are
hereunder reproduced with the amendments
duly highlighted:
Section 2901. Definition
Berthing charge is the amount
assessed against a vessel for
mooring or berthing at a pier,
wharf, bulkhead-wharf, river
or channel marginal wharf at
any port in the Philippines; or
for mooring or making fast to
a vessel so berthed; or for
coming or mooring within
any slip, channel, basin, river
or canal under the jurisdiction
of any port of the Philippines
(old TCC)
Section 2901. Definition
Berthing charge is the amount
assessed a vessel for mooring
or berthing at a pier, wharf,
bulkhead-wharf, river or
channel marginal wharf AT
ANY NATIONAL PORT IN
THE PHILIPPINES; for
mooring or making fast to a
vessel so berthed; or for
coming or mooring within

any slip, channel, basin, river

or canal under the jurisdiction
of ANY NATIONAL port of
the Philippines; Provided,
HOWEVER, THAT IN THE
LAST INSTANCE, THE
CHARGE
SHALL
BE
FIFTY (50%) PER CENT OF
RATES PROVIDED FOR IN
CASES
OF
PIERS
WITHOUT CARGO SHED
IN THE SUCCEEDING
SECTIONS.
It will thus be seen that the word "national"
before the word "port" is inserted in the
amendment. The change in phraseology by
amendment of a provision of law indicates a
legislative intent to change the meaning of the
provision from that it originally had
(Agpalo, supra, p. 76). The insertion of the
word "national" before the word "port" is a
clear indication of the legislative intent to
change the meaning of Section 2901 from
what it originally meant, and not a mere
surplusage as contended by petitioner, in the
sense that the change "merely affirms what
customs authorities had been observing long
before the law was amended" (p. 18, Petition).
It is the duty of this Court to give meaning to
the amendment. It is, therefore, our considered
opinion that under Section 2901 of the Tariff
and
Customs
Code,
as
amended
by Presidential Decree No. 34, only vessels
berthing at national ports are liable for
berthing fees. It is to be stressed that there are
differences between national ports and
municipal ports, namely: (1) the maintenance
of municipal ports is borne by the

municipality, whereas that of the national

ports is shouldered by the national
government; (2) municipal ports are created
by executive order, while national ports are
usually created by legislation; (3) berthing
fees are not collected by the government from
vessels berthing at municipal ports, while such
berthing fees are collected by the government
from vessels moored at national ports. The
berthing fees imposed upon vessels berthing at
national ports are applied by the national
government for the maintenance and repair of
said ports. The national government does not
maintain municipal ports which are solely
maintained by the municipalities or private
entities which constructed them, as in the case
at bar. Thus, no berthing charges may be
collected from vessels moored at municipal
ports nor may berthing charges be imposed by
a municipal council (Tejam's Commentaries
on the Revised Tariff and Customs Code, p.
2486, citing Circular Letter No. 2981 dated
September 30, 1958 quoting Op. No. 122, s. of
1958 and Op. No. 373, s. of 1940, Sec. of
Justice)
The subject vessels, not having berthed at a
national port but at the Port of Kiwalan, which
was constructed, operated, and continues to be
maintained by private respondent Iligan
Express Corporation, are not subject to
berthing charges, and petitioner should refund
the berthing fees paid by private
respondent. LexLib
WHEREFORE, the petition is hereby
DENIED and the decision of the Court of Tax
Appeals AFFIRMED.

SO ORDERED.
||| (Commissioner of Customs v. CTA, G.R.
Nos. L-48886-88, [July 21, 1993])
[G.R. No. 106719. September 21, 1993.]
DRA. BRIGIDA S. BUENASEDA,
Lt. Col. ISABELO BANEZ, JR.
ENGR. CONRADO REY MATIAS,
Ms. CORA S. SOLIS and Ms. ENYA
N.
LOPEZ, petitioners, vs. SECRETAR
Y JUAN FLAVIER, Ombudsman
CONRADO M. VASQUEZ and
NCMH NURSES ASSOCIATION,
represented by RAOULITO
GAYUTIN, respondents.

DECISION

QUIASON, J p:
This is a Petition for Certiorari, Prohibition
and Mandamus, with Prayer for Preliminary
Injunction or Temporary Restraining Order,
under Rule 65 of the Revised Rules of Court.
Principally, the petition seeks to nullify the
Order of the Ombudsman dated January 7,
1992, directing the preventive suspension of
petitioners, Dr. Brigida S. Buenaseda, Chief of
Hospital III; Isabelo C. Baez, Jr.,
Administrative Officer III; Conrado Rey
Matias, Technical Assistant to the Chief of
Hospital; Cora C. Solis, Accountant III; and

Enya N. Lopez, Supply Officer III, all of the

National Center for Mental Health. The
petition also asks for an order directing the
Ombudsman to disqualify Director Raul
Arnaw and Investigator Amy de Villa-Rosero,
of the Office of the Ombudsman, from
participation in the preliminary investigation
of the charges against petitioner (Rollo, pp. 217; Annexes to Petition, Rollo, pp. 19-21).
The questioned order was issued in connection
with the administrative complaint filed with
the Ombudsman (OBM-ADM-0-91-0151) by
the private respondents against the petitioners
for violation of the Anti-Graft and Corrupt
Practices Act.
According to the petition, the said order was
issued upon the recommendation of Director
Raul Arnaw and Investigator Amy de VillaRosero, without affording petitioners the
opportunity to controvert the charges filed
against them. Petitioners had sought to
disqualify Director Arnaw and Investigator
Villa-Rosero for manifest partiality and bias
(Rollo, pp. 4-15).
On September 10, 1992, this Court required
respondents' Comment on the petition.
On September 14 and September 22, 1992,
petitioners filed a "Supplemental Petition
(Rollo, pp. 124-130; Annexes to Supplemental
Petition; Rollo, pp. 140-163) and an "Urgent
Supplemental Manifestation" (Rollo, pp. 164172; Annexes To Urgent Supplemental
Manifestation;
Rollo,
pp.
173-176),
respectively, averring developments that
transpired after the filing of the petition and
stressing the urgency for the issuance of the

writ of preliminary injunction or temporary

restraining order.
On September 22, 1992, this Court ". . .
Resolved to REQUIRE the respondents to
MAINTAIN in the meantime, the STATUS
QUO pending filing of comments by said
respondents on the original supplemental
manifestation" (Rollo, p. 177).
On September 29, 1992, petitioners filed a
motion to direct respondent Secretary of
Health to comply with the Resolution dated
September 22, 1992 (Rollo, pp. 182-192,
Annexes, pp. 192-203). In a Resolution dated
October 1, 1992, this Court required
respondent Secretary of Health to comment on
the said motion.
On September 29, 1992, in a pleading entitled
"Omnibus Submission," respondent NCMH
Nurses Association submitted its Comment to
the Petition, Supplemental Petition and Urgent
Supplemental Manifestation. Included in said
pleadings were the motions to hold the
lawyers of petitioners in contempt and to
disbar them (Rollo, pp. 210-267). Attached to
the "Omnibus Submission" as annexes were
the orders and pleadings filed in
Administrative Case No. OBM-ADM-0-910151 against petitioners (Rollo, pp. 268-480).
The Motion for Disbarment charges the
lawyers of petitioners with: (1) "unlawfully
advising or otherwise causing or inducing
their clients petitioners Buenaseda, et al., to
openly defy, ignore, disregard, disobey or
otherwise violate, maliciously evade their
preventive suspension by Order of July 7,
1992 of the Ombudsman . . ."; (2) "unlawfully

interfering with and obstructing the

implementation of the said order (Omnibus
Submission, pp. 50-52; Rollo, pp. 259-260);
and (3) violation of the Canons of the Code of
Professional
Responsibility
and
of
unprofessional and unethical conduct "by
foisting blatant lies, malicious falsehood and
outrageous deception" and by committing
subornation of perjury, falsification and
fabrication in their pleadings (Omnibus
Submission, pp. 52-54; Rollo, pp. 261-263).
On November 11, 1992, petitioners filed a
"Manifestation and Supplement to 'Motion to
Direct Respondent Secretary of Health to
Comply with 22 September 1992 Resolution'"
(Manifestation attached to Rollo without
pagination between pp. 613 and 614 thereof).
On November 13, 1992, the Solicitor General
submitted its Comment dated November 10,
1992, alleging that: (a) "despite the issuance of
the September 22, 1992 Resolution directing
respondents to maintain the status quo,
respondent Secretary refuses to hold in
abeyance the implementation of petitioners'
preventive suspension; (b) the clear intent and
spirit of the Resolution dated September 22,
1992 is to hold in abeyance the
implementation of petitioners' preventive
suspension, the status quo obtaining the time
of the filing of the instant petition; (c)
respondent Secretary's acts in refusing to hold
in abeyance implementation of petitioners'
preventive suspension and in tolerating and
approving the acts of Dr. Abueva, the OIC
appointed to replace petitioner Buenaseda, are
in violation of the Resolution dated September
22, 1992; and (d) therefore, respondent
Secretary should be directed to comply with

the Resolution dated September 22, 1992

immediately, by restoring the status quo
ante contemplated by the aforesaid resolution"
(Comment attached to Rollo without
paginations between pp. 613-614 thereof).
In the Resolution dated November 26, 1992,
this Court required respondent Secretary to
comply with the aforestated status quo order,
stating inter alia, that:
"It appearing that the status
quo ante litem motan, or the
last peaceable uncontested
status which preceded the
present controversy was the
situation obtaining at the time
of the filing of the petition at
bar on September 7, 1992
wherein petitioners were then
actually occupying their
respective positions, the
Court hereby ORDERS that
petitioners be allowed to
perform the duties of their
respective positions and to
receive such salaries and
benefits as they may be
lawfully entitled to, and that
respondents and/or any and
all persons acting under their
authority desist and refrain
from performing any act in
violation
of
the
aforementioned Resolution of
September 22, 1992 until
further orders from the
Court" (Attached to Rollo
after p. 615 thereof).

On December 9, 1992, the Solicitor General,

commenting on the Petition, Supplemental
Petition and Supplemental Manifestation,
stated that: (a) "The authority of the
Ombudsman is only to recommend suspension
and he has no direct power to suspend;" and
(b) "Assuming the Ombudsman has the power
to directly suspend a government official or
employee, there are conditions required by
law for the exercise of such powers; [and] said
conditions have not been met in the instant
case" (Attached to Rollo without pagination).
In the pleading filed on January 25, 1993,
petitioners adopted the position of the
Solicitor General that the Ombudsman can
only suspend government officials or
employees connected with his office.
Petitioners also refuted private respondents'
motion to disbar petitioners' counsel and to
cite them for contempt (Attached to Rollo
without pagination).
The crucial issue to resolve is whether the
Ombudsman has the power to suspend
government officials and employees working
in offices other than the Office of the
Ombudsman, pending the investigation of the
administrative complaints filed against said
officials and employees.
In upholding the power of the Ombudsman to
preventively suspend petitioners, respondents
(Urgent Motion to Lift Status Quo, etc, dated
January 11, 1993, pp. 10-11), invoke Section
24 of R.A. No. 6770, which provides:
"Sec.
24. Preventive
Suspension.

The
Ombudsman or his Deputy

may preventively suspend

any officer or employee
under his authority pending
an investigation, if in his
judgment the evidence of
guilt is strong, and (a) the
charge against such officer or
employee
involves
dishonesty, oppression or
grave misconduct or neglect
in the performance of duty;
(b) the charge would warrant
removal from the service; or
(c) the respondent's continued
stay in office may prejudice
the case filed against him.
The preventive suspension
shall continue until the case is
terminated by the Office of
Ombudsman but not more
than six months, without pay,
except when the delay in the
disposition of the case by the
Office of the Ombudsman is
due to the fault, negligence or
petition of the respondent, in
which case the period of such
delay shall not be counted in
computing the period of
suspension herein provided."
Respondents argue that the power of
preventive suspension given the Ombudsman
under Section 24 of R.A. No. 6770 was
contemplated by Section 13 (8) of Article XI
of the 1987 Constitution, which provides that
the Ombudsman shall "exercise such other
power or perform such functions or duties as
may be provided by law."

On the other hand, the Solicitor General and

the petitioners claim that under the
1987 Constitution, the Ombudsman can only
recommend to the heads of the departments
and other agencies the preventive suspension
of
officials
and
employees
facing
administrative investigation conducted by his
office. Hence, he cannot order the preventive
suspension himself.
They invoke Section 13(3) of the
1987 Constitution which provides that the
Office of the Ombudsman shall have inter
alia the power, function, and duty to:
"Direct the officer concerned
to take appropriate action
against a public official or
employee at fault, and
recommend his removal,
suspension, demotion, fine,
censure or prosecution, and
ensure
compliance
therewith."
The Solicitor General argues that under said
provision of the Constitution, the Ombudsman
has three distinct powers, namely: (1) direct
the officer concerned to take appropriate
action against public officials or employees at
fault; (2) recommend their removal,
suspension, demotion fine, censure, or
prosecution; and (3) compel compliance with
the recommendation (Comment dated
December 3, 1992, pp. 9-10). Cdpr
The line of argument of the Solicitor General
is a siren call that can easily mislead, unless
one bears in mind that what the Ombudsman

imposed on petitioners was not a punitive but

only a preventive suspension.

and efficient manner, he may need to suspend

the respondent.

When
the Constitution vested
on
the
Ombudsman the power "to recommend the
suspension" of a public official or employees
(Sec. 13 [3]), it referred to "suspension," as a
punitive measure. All the words associated
with the word "suspension" in said provision
referred to penalties in administrative cases,
e.g. removal, demotion, fine, censure. Under
the rule of Noscitor a sociis, the word
"suspension" should be given the same sense
as the other words with which it is associated.
Where a particular word is equally susceptible
of various meanings, its correct construction
may be made specific by considering the
company of terms in which it is found or with
which it is associated (Co Kim Chan v. Valdez
Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.)
Inc. v. Palomar, 18 SCRA 247 [1966]).

The need for the preventive suspension may

arise from several causes, among them, the
danger of tampering or destruction of evidence
in the possession of respondent; the
intimidation
of
witnesses,
etc. The
Ombudsman should be given the discretion to
decide when the persons facing administrative
charges should be preventively suspended.

Section 24 of R.A. No. 6770, which grants the

Ombudsman the power to preventively
suspend public officials and employees facing
administrative charges before him, is a
procedural, not a penal statute. The preventive
suspension is imposed after compliance with
the requisites therein set forth, as an aid in the
investigation of the administrative charges.
Under the Constitution, the Ombudsman is
expressly authorized to recommend to the
appropriate official the discipline or
prosecution of erring public officials or
employees. In order to make an intelligent
determination whether to recommend such
actions, the Ombudsman has to conduct an
investigation. In turn, in order for him to
conduct such investigation in an expeditious

Penal statutes are strictly construed while

procedural statutes are liberally construed
(Crawford,
Statutory
Construction,
Interpretation of Laws, pp. 460-461; Lacson v.
Romero, 92 Phil. 456 [1953]). The test in
determining if a statute is penal is whether a
penalty is imposed for the punishment of a
wrong to the public or for the redress of an
injury to an individual (59 Corpuz Juris, Sec.
658; Crawford, Statutory Constructive, pp.
496-497). A Code prescribing the procedure in
criminal cases is not a penal statute and is to
be interpreted liberally (People v. Adler, 140
N.Y. 331; 35 N.E. 644).
The purpose of R.A. No. 6770 is to give the
Ombudsman such powers as he may need to
perform efficiently the task committed to him
by the Constitution. Such being the case, said
statute, particularly its provisions dealing with
procedure, should be given such interpretation
that will effectuate the purposes and objectives
of the Constitution. Any interpretation that
will hamper the work of the Ombudsman
should be avoided.
A statute granting powers to an agency created
by the Constitution should be liberally

construed for the advancement of the purposes

and objectives for which it was created (Cf.
Department of Public Utilities v. Arkansas
Louisiana Gas. Co., 200 Ark. 983, 142 S.W.
(2d) 213 [1940]; Wallace v. Feehan, 206 Ind.
522, 190 N.E., 438 [1934]).
In Nera v. Garcia, 106 Phil. 1031 [1960], this
Court, holding that a preventive suspension is
not a penalty, said:
"Suspension is a preliminary
step in an administrative
investigation. If after such
investigation, the charges are
established and the person
investigated is found guilty of
acts warranting his removal,
then he is removed or
dismissed. This is the
penalty."
To support his theory that the Ombudsman can
only preventively suspend respondents in
administrative cases who are employed in his
office, the Solicitor General leans heavily on
the phrase "suspend any officer or employee
under his authority" in Section 24 of R.A. No.
6770.
The origin of the phrase can be traced to
Section 694 of the Revised Administrative
Code, which dealt with preventive suspension
and which authorized the chief of a bureau or
office to "suspend any subordinate or
employee in his bureau or under his authority
pending an investigation . . ."
Section 34 of the Civil Service Act of 1959
(R.A. No. 2266), which superseded Section
694 of the Revised Administrative Code also

authorized the chief of a bureau or office to

"suspend any subordinate officer or
employees, in his bureau or under his
authority."
However, when the power to discipline
government officials and employees was
extended to the Civil Service Commission by
the Civil Service Law of 1975 (P.D. No. 805),
concurrently with the President, the
Department Secretaries and the heads of
bureaus and offices, the phrase "subordinate
officer and employee in his bureau" was
deleted, appropriately leaving the phrase
"under his authority." Therefore, Section 41 of
said law only mentions that the proper
disciplining authority may preventively
suspend "any subordinate officer or employee
under his authority pending an investigation . .
." (Sec. 41).
The Administrative Code of 1987 also
empowered the proper disciplining authority
to "preventively suspend any subordinate
officer or employee under his authority
pending an investigation" (Sec. 51).
The Ombudsman Law advisedly deleted the
words "subordinate" and "in his bureau,"
leaving the phrase to read "suspend any officer
or employee under his authority pending an
investigation . . ." The conclusion that can be
deduced from the deletion of the word
"subordinate" before and the words "in his
bureau" after "officer or employee" is that the
Congress intended to empower the
Ombudsman to preventively suspend all
officials and employees under investigation by
his office, irrespective of whether they are
employed "in his office" or in other offices of

the government. The moment a criminal or

administrative complaint is filed with the
Ombudsman, the respondent therein is deemed
to be "in his authority" and he can proceed to
determine whether said respondent should be
placed under preventive suspension.
In their petition, petitioners also claim that the
Ombudsman committed grave abuse of
discretion amounting to lack of jurisdiction
when he issued the suspension order without
affording petitioners the opportunity to
confront the charges against them during the
preliminary conference and even after
petitioners had asked for the disqualification
of Director Arnaw and Atty. Villa-Rosero
(Rollo, pp. 6-13). Joining petitioners, the
Solicitor
General
contends
that
assuming arguendo that the Ombudsman has
the power to preventively suspend erring
public officials and employees who are
working in other departments and offices, the
questioned order remains null and void for his
failure to comply with the requisites in Section
24 of the Ombudsman Law (Comment dated
December 3, 1992, pp. 11-19).
Being a mere order for preventive suspension,
the questioned order of the Ombudsman was
validly issued even without a full- blown
hearing and the formal presentation of
evidence by the parties. In Nera, supra,
petitioner therein also claimed that the
Secretary of Health could not preventively
suspend him before he could file his answer to
the administrative complaint. The contention
of petitioners herein can be dismissed
perfunctorily by holding that the suspension
meted out was merely preventive and
therefore, as held in Nera, there was "nothing

improper in suspending an officer pending his

investigation and before the charges against
him are heard . . . (Nera v. Garcia, supra).
There is no question that under Section 24
of R.A. No. 6770, the Ombudsman cannot
order the preventive suspension of a
respondent unless the evidence of guilt is
strong and (1) the charge against such officer
or employee involves dishonesty, oppression
or grave misconduct or neglect in the
performance of duty; (2) the charge would
warrant removal from the service; or (3) the
respondent's continued stay in office may
prejudice the case filed against him.
The same conditions for the exercise of the
power to preventively suspend officials or
employees under investigation were found in
Section 34 of R.A. No. 2260.
The import of the Nera decision is that the
disciplining authority is given the discretion to
decide when the evidence of guilt is strong.
This fact is bolstered by Section 24 of R.A.
No. 6770, which expressly left such
determination of guilt to the "judgment" of the
Ombudsman on the basis of the administrative
complaint. In the case at bench, the
Ombudsman issued the order of preventive
suspension only after: (a) petitioners had filed
their answer to the administrative complaint
and the "Motion for the Preventive
Suspension" of petitioners, which incorporated
the charges in the criminal complaint against
them (Annex 3, Omnibus Submission, Rollo,
pp. 288-289; Annex 4, Rollo, pp. 290-296);
(b) private respondent had filed a reply to the
answer of petitioners, specifying 23 cases of
harassment by petitioners of the members of

private respondent (Annex 6, Omnibus

Submission, Rollo, pp. 309-333); and (c) a
preliminary
conference
wherein
the
complainant and the respondents in the
administrative case agreed to submit their list
of witnesses and documentary evidence.

private respondents hurled against petitioners

and their counsel (Consolidated: (1) Comment
on Private Respondent" "Urgent Motions,
etc.,; (2) Adoption of OSG's Comment; and
(3) Reply to Private Respondent's Comment
and Supplemental Comment, pp. 4-5).

Petitioners herein submitted on November 7,

1991 their list of exhibits (Annex 8 of
Omnibus Submission, Rollo, pp. 336-337)
while private respondents submitted their list
of exhibits (Annex 9 of Omnibus Submission,
Rollo, pp. 338-348).

A lawyer should not be carried away in

espousing his client's cause. The language of a
lawyer, both oral or written, must be respectful
and restrained in keeping with the dignity of
the legal profession and with his behavioral
attitude toward his brethren in the profession
(Lubiano v. Gordolla, 115 SCRA 459 [1982]).
The use of abusive language by counsel
against the opposing counsel constitutes at the
same time a disrespect to the dignity of the
court of justice. Besides, the use of
impassioned language in pleadings, more
often than not, creates more heat than light.

Under these circumstances, it can not be said

that Director Raul Arnaw and Investigator
Amy de Villa-Rosero acted with manifest
partiality and bias in recommending the
suspension of petitioners. Neither can it be
said that the Ombudsman had acted with grave
abuse of discretion in acting favorably on their
recommendation.
The Motion for Contempt, which charges the
lawyers of petitioners with unlawfully causing
or otherwise inducing their clients to openly
defy and disobey the preventive suspension as
ordered by the Ombudsman and the Secretary
of Health can not prosper (Rollo, pp. 259261). The Motion should be filed, as in fact
such a motion was filed, with the
Ombudsman. At any rate, we find that the acts
alleged to constitute indirect contempt were
legitimate measures taken by said lawyers to
question the validity and propriety of the
preventive suspension of their clients.
On the other hand, we take cognizance of the
intemperate language used by counsel for

The Motion for Disbarment (Rollo, p. 261) has

no place in the instant special civil action,
which is confined to questions of jurisdiction
or abuse of discretion for the purpose of
relieving persons from the arbitrary acts of
judges and quasi-judicial officers. There is a
set of procedure for the discipline of members
of the bar separate and apart from the present
special civil action.
WHEREFORE, the petition is DISMISSED
and the status quo ordered to be maintained in
the Resolution dated September 22, 1992 is
LIFTED and SET ASIDE.
SO ORDERED.
||| (Buenaseda v. Flavier, G.R. No. 106719,
[September 21, 1993])

[G.R. No. 79094. June 22, 1988.]

MANOLO
FULE, petitioner, vs. THE
HONORABLE
COURT
APPEALS, respondent.

P.
OF

DECISION

MELENCIO-HERRERA, J p:
This is a Petition for Review on Certiorari of
the Decision of respondent Appellate Court,
which affirmed the judgment of the Regional
Trial Court, Lucena City, Branch LIV,
convicting petitioner (the accused-appellant)
of Violation of Batas Pambansa Blg.
22 (The Bouncing Checks Law) on the basis
of the Stipulation of Facts entered into
between the prosecution and the defense
during the pre-trial conference in the Trial
Court. The facts stipulated upon read:
"a) That this Court has
jurisdiction over the person
and subject matter of this
case;
"b) That the accused was an
agent
of
the
Towers
Assurance Corporation on or
before January 21, 1981;
"c) That on January 21, 1981,
the accused issued and made
out check No. 26741, dated

January 24, 1981 in the sum

of P2,541.05;
"d) That the said check was
drawn in favor of the
complaining witness, Roy
Nadera;
"e) That the check was drawn
in favor of the complaining
witness in remittance of
collection;
"f) That the said check was
presented for payment on
January 24, 1981 but the
same was dishonored for the
reason that the said checking
account was already closed;
"g) That the accused Manolo
Fule has been properly
identified as the accused
party in this case."
At the hearing of August 23, 1985, only the
prosecution presented its evidence consisting
of Exhibits "A," "B" and "C." At the
subsequent hearing on September 17, 1985,
petitioner-appellant waived the right to present
evidence and, in lieu thereof, submitted a
Memorandum confirming the Stipulation of
Facts. The Trial Court convicted petitionerappellant.
On appeal, respondent Appellate Court upheld
the Stipulation of Facts and affirmed the
judgment of conviction. 1
Hence, this recourse, with petitioner-appellant
contending that:

"The Honorable Respondent

Court of Appeals erred in
affirming the decision of the
Regional
Trial
Court
convicting the petitioner of
the offense charged, despite
the cold fact that the basis of
the conviction was based
solely on the stipulation of
facts made during the pretrial on August 8, 1985,
which was not signed by the
petitioner, nor by his
counsel."
Finding the petition meritorious, we resolved
to give due course.
The 1985 Rules on Criminal Procedure, which
became effective on January 1, 1985,
applicable to this case since the pre-trial was
held on August 8, 1985, provides:
"SEC.
4. Pre-trial
agreements must be signed.

No
agreement
or
admission made or entered
during
the
pre-trial
conference shall be used in
evidence against
the
accused unless reduced to
writing and signed by him
and his counsel." (Rule 118)
[Emphasis supplied]
By its very language, the Rule is mandatory.
Under the rule of statutory construction,
negative words and phrases are to be regarded
as mandatory while those in the affirmative
are merely directory (McGee vs. Republic, 94

Phil. 820 [1954]). The use of the term "shall"

further emphasizes its mandatory character
and means that it is imperative, operating to
impose a duty which may be enforced
(Bersabal vs. Salvador, No. L-35910, July 21,
1978, 84 SCRA 176). And more importantly,
penal statutes whether substantive and
remedial or procedural are, by consecrated
rule, to be strictly applied against the
government and liberally in favor of the
accused (People vs. Terrado, No. L-23625,
November 25, 1983, 125 SCRA 648).
The conclusion is inevitable, therefore, that
the omission of the signature of the accused
and his counsel, as mandatorily required by
the Rules, renders the Stipulation of Facts
inadmissible in evidence. The fact that the
lawyer of the accused, in his memorandum,
confirmed the Stipulation of Facts does not
cure the defect because Rule 118 requires both
the accused and his counsel to sign the
Stipulation of Facts. What the prosecution
should have done, upon discovering that the
accused did not sign the Stipulation of Facts,
as required by Rule 118, was to submit
evidence to establish the elements of the
crime, instead of relying solely on the
supposed admission of the accused in the
Stipulation of Facts. Without said evidence
independent of the admission, the guilt of the
accused cannot be deemed established beyond
reasonable doubt.
Consequently, under the circumstances
obtaining in this case, the ends of justice
require that evidence be presented to
determine the culpability of the accused.
When a judgment has been entered by consent
of an attorney without special authority, it will

sometimes be set aside or reopened (Natividad

vs. Natividad, 51 Phil. 613 [1928]). cdrep
WHEREFORE, the judgment of respondent
Appellate Court is REVERSED and this case
is hereby ordered RE-OPENED and
REMANDED to the appropriate Branch of the
Regional Trial Court of Lucena City, for
further reception of evidence.
SO ORDERED.
||| (Fule v. Court of Appeals, G.R. No. 79094,
[June 22, 1988], 245 PHIL 403-407)
[G.R. No. L-4221. August 30, 1952.]
MARCELO D.
MONTENEGRO, petitionerappellant, vs. GEN. MARIANO
CASTAEDA and COLONEL
EULOGIO BALAO, respondentsappellees.
SYLLABUS
1.CONSTITUTIONAL LAW; EX
POST
FACTO
LAWS.

The
constitutional prohibition against bills of
attainder or ex post facto laws applies only
to statutes.
2.HABEAS
CORPUS;
SUSPENSION
THEREOF;
PROCLAMATION NO. 210; SEDITION,
NOT INCLUDED THEREIN. The stay
of the privilege of the writ of habeas
corpus, ordered in Proclamation No. 210,

is in accordance with the powers expressly

vested in the President by the Constitution.
However, the word "sedition" in
Proclamation No. 210 should be deemed a
mistake or surplusage that does not taint
the decree as a whole.
3.ID.; ID. The president has
power to suspend the privilege of the writ
of habeas corpus, when public safety
requires it, in cases of (1) invasion, (2)
insurrection, (3) rebellion, or (4) imminent
danger thereof. The official declaration
that "there is actual danger of rebellion
which may extend throughout the country"
amply justifies the suspension of the writ.
4.ID.; ID.; CONCLUSIVENESS.
The President's declaration about the
existence of danger is conclusive upon the
courts.
5.ID.;
ID.;
EFFECT
OF
SUSPENSION ON CASES FILED
BEFORE THE PROCLAMATION. A
proclamation of the President suspending
the writ of habeas corpus is valid and
efficient in law to suspend all proceedings
pending upon habeas corpus.
6.ID.; ID.; EVIDENCE OF THE
FACTS STATED IN THE PETITION.
In habeas corpus cases, averments of facts
in the return, in the absence of denial or
appropriate pleading avoiding their effect,
will be taken as true and conclusive,
regardless of the allegations contained in
the petition.

DECISION

BENGZON, J p:
The purpose of this appeal from the
Court of First Instance of Quezon City is
to test the validity of Proclamation No.
210 suspending the privilege of the writ of
habeas corpus.
A few months ago the same
proclamation came up for discussion in
connection with the request for bail of
some
prisoners
charged
with
rebellion. 1 The divided opinion of this
Court did not squarely pass on the validity
of the proclamation; but, assuming it was
obligatory, both sides proceeded to
determine its effect upon the right of such
prisoners to go on bail.
This decision will now consider the
points debated regarding the aforesaid
presidential order.
The facts are few and simple:
About five o'clock in the morning of
October 18, 1950, Maximino Montenegro
was arrested with others at the Samanillo
Bldg., Manila, by agents of the Military
Intelligence Service of the Armed Forces
of the Philippines, for complicity with a
communistic
organization
in
the
commission of acts of rebellion,
insurrection or sedition. So far as the
record discloses, he is still under arrest in
the custody of respondents. On October
22,
1950,
the
President
issued
Proclamation No. 210 suspending the
privilege of the writ of habeas corpus. On
October 21, 1950, Maximino's father, the
petitioner, submitted this application for a

writ of habeas corpus seeking the release

of his son.
Opposing the writ, respondents
admitted having the body of Maximino,
but questioned judicial authority to go
further in the matter, invoking the abovementioned proclamation.
Petitioner replied that such
proclamation was void, and that, anyway,
it did not apply to his son, who had been
arrested before its promulgation. Heeding
the suspension order, the court of first
instance denied the release prayed for.
Hence this appeal, founded mainly on the
petitioner's propositions:
(a)The
proclamation
is
unconstitutional "because it partakes of a
bill of attainder, or an ex post facto law;
and unlawfully includes sedition which
under the Constitution is not a ground for
suspension";
(b)"There is no state of invasion,
insurrection or rebellion, or imminent
danger thereof," the only situations
permitting discontinuance of the writ of
habeas corpus;
(c)Supposing the proclamation is
valid, no prima facie showing was made
that the petitioner's son was included
within the terms thereof.
Proclamation No. 210 reads partly
as follows:
"WHEREAS, lawless
elements of the country have
committed overt acts of
sedition, insurrection and

rebellion for the purpose of

overthrowing
the
duly
constituted authorities and, in
pursuance
thereof,
have
created a state of lawlessness
and disorder affecting public
safety and the security of the
state;
"WHEREAS,
these
acts of sedition, insurrection
and rebellion consisting of
armed raids, sorties and
ambushes and the wanton
acts of murder, rape, spoilage,
looting,
arson,
planned
destruction of public and
private buildings, and attacks
against
police
and
constabularly detachments, as
well as against civilian lives
and properties, as reported by
the Commanding General of
the Armed Forces, have
seriously endangered and still
continue to endanger the
public safety;
"WHEREAS,
these
acts of sedition, insurrection
and rebellion have been
perpetrated by various groups
of persons well organized for
concerted action and well
armed with machine guns,
rifles, pistols and other
automatic weapons, by reason
whereof there is actual danger
of rebellion which may

extend
country;

throughout

the

"WHEREAS,
100
leading members of these
lawless elements have been
apprehended
and
are
presently under detention,
and strong and convincing
evidence has been found in
their possession to show that
they
are
engaged
in
rebellious, seditious and
otherwise subversive acts as
above set forth; and
"WHEREAS, public
safety
requires
that
immediate and effective
action be taken to insure the
peace and security of the
population and to maintain
the
authority
of
the
government;
"NOW,
THEREFORE, I, ELPIDIO
QUIRINO, President of the
Philippines, by virtue of the
powers vested upon me by
article VII, section 10,
paragraph
(2)
of
the
Constitution,
do
hereby
suspend the privilege of the
writ of habeas corpus for the
persons presently detained, as
well as all others who may be
hereafter similarly detained
for the crimes of sedition,
insurrection or rebellion, and
all other crimes and offenses

committed by them in
furtherance or on the
occasion thereof, or incident
thereto, or in connection
therewith."
A.t is first argued that the
proclamation is invalid because it
"partakes" of a bill of attainder or an ex
post facto law, and violates
the
constitutional precept that no bill of
attainder or ex post facto law shall be
passed. The argument is devoid of merit.
The prohibition applies only to statutes. U.
S. vs. Gen. El., 80 Fed. Supp. 989; De Pass
vs. Bidwell, 124 Fed., 615. 1 A bill of
attainder is a legislative act which inflicts
punishment without judicial trial. (16 C. J.
S. p. 902; U. S. vs. Lovett (1946) 328 U.
S. 303). Anyway, if, as we find, the stay of
the writ was ordered in accordance with
the powers expressly vested in the
President by the Constitution, such order
must be deemed an exception to the
general prohibition against ex post
facto laws and bills of attainder
supposing there is a conflict between the
prohibition and the suspension.
On the other hand there is no doubt
it was erroneous to include those accused
of sedition among the persons as to whom
suspension of the writ is decreed. Under
the Constitution the only grounds for
suspension of the privilege of the writ are
"invasion, insurrection, rebellion or
imminent danger thereof." Obviously,
however, the inclusion of sedition does not
invalidate the entire proclamation; and it is
immaterial in this case, inasmuch as the

petitioner's descendant is confined in jail

not only for sedition, but for the graver
offense of rebellion and insurrection.
Without doing violence to the presidential
directive, but in obedience to the supreme
law of the land, the word "sedition" in
Proclamation No. 210 should be deemed a
mistake or surplusage that does not taint
the decree as a whole.
B.In his second proposition
appellant insists there is no state of
invasion, insurrection, rebellion or
imminent danger thereof. "There are" he
admits "intermittent sorties and lightning
attacks by organized bands in different
places"; but, he argues, "such sorties are
occasional, localized and transitory. And
the proclamation speaks no more than of
overt acts of insurrection and rebellion, not
of cases of invasion, insurrection or
rebellion or imminent danger thereof." On
this subject it is noted that the President
concluded from the facts recited in the
proclamation, and others connected
therewith, that "there is actual danger of
rebellion which may extend throughout the
country." Such official declaration
implying much more than imminent
danger of rebellion amply justifies the
suspension of the writ.
To the petitioner's unpracticed eye
the repeated encounters between dissident
elements and military troops may seem
sporadic, isolated, or casual. But the
officers charged with the Nation's security,
analyzed the extent and pattern of such
violent clashes and arrived at the
conclusion that they are warp and woof of

a general scheme to overthrow this

government vi et armis, by force and arms.
And we agree with the Solicitor
General that in the light of the views of the
United States Supreme Court thru
Marshall, Taney and Story quoted with
approval in Barcelon vs. Baker (5 Phil.,
87, pp. 98 and 100) the authority to decide
whether the exigency has arisen requiring
suspension belongs to the President and
"his decision is final and conclusive" upon
the courts and upon all other persons.
Indeed as Justice Johnson said in
that decision, whereas the Executive
branch of the Government is enabled thru
its civil and military branches to obtain
information about peace and order from
every quarter and corner of the nation, the
judicial department, with its very limited
machinery can not be in better position to
ascertain or evaluate the conditions
prevailing in the Archipelago.
But even supposing the President's
appraisal of the situation is merely prima
facie, we see that petitioner in this
litigation has failed to overcome the
presumption of correctness which the
judiciary accords to acts of the Executive
and Legislative Departments of our
Government.
C.The petitioner's last contention is
that the respondents failed to establish that
his son is included within the terms of the
proclamation.

On this topic, respondents' return

officially informed the court that
Maximino had been arrested and was
under custody for complicity in the
commission of acts of rebellion,
insurrection and sedition against the
Republic of the Philippines. Not having
traversed that allegation in time, petitioner
must be deemed to have conceded it.
". . . In the absence of
a denial, or appropriate
pleading avoiding their effect,
averment of facts in the
return will be taken as true
and conclusive, regardless of
the allegations contained in
the petition; and the only
question for determination is
whether or not the facts stated
in the return, as a matter of
law, authorizes the restraint
under investigation." (39 C. J.
S., 664-665.)
D. An interesting issue is posed
by amici curiae. The Bill of Rights
prohibits suspension of the privilege of the
writ of habeas corpus except when the
public safety requires it, in cases of (1)
invasion (2) insurrection or (3) rebellion.
Article VII Section 10 authorizes
the President to suspend the privilege,
when public safety requires it, in cases of
(1) invasion (2) insurrection or (3)
rebellion or (4) imminent danger thereof.
"Imminent danger," is no cause for
suspension under the Bill of Rights. It is
under Article VII. To complicate matters,

during the debates of the Constitutional

Convention on the Bill of Rights,
particularly the suspension of the writ, the
Convention voted down an amendment
adding a fourth cause of suspension:
imminent danger of invasion, insurrection
or rebellion.
Professor Aruego, a member of the
Convention, describes the incident as
follows:
During the debates on
the first draft, Delegate
Francisco
proposed
an
amendment inserting, as a
fourth
cause
for
the
suspension of the writ of
habeas corpus imminent
danger of the three causes
included
herein.
When
submitted to a vote for the
first time, the amendment
was carried.
"After his motion for
a reconsideration of the
amendment was approved,
Delegate
Orense
spoke
against
the
amendment
alleging that it would be
dangerous to make imminent
danger a ground for the
suspension of the writ of
habeas corpus. In part, he
said:
"'Gentlemen,
this
phrase is too ambiguous, and
in the hands of a President
who believes more or less a

dictator, it is extremely
dangerous; it would be a
sword with which he would
behead us.'
"In defense of the
amendment,
Delegate
Francisco pointed out that it
was intended to make this
part of the bill of rights
conform to that part of the
draft giving the President the
power to suspend the writ of
habeas corpus also in the case
of an imminent danger of
invasion or rebellion. When
asked by Delegate Rafols if
the phrase, imminent danger,
might not be struck out from
the corresponding provision
under the executive power
instead, Delegate Francisco
answered:
"'Outright,
it
is
possible to eliminate the
phrase, imminent danger
thereof, in the page I have
mentioned. But I say, going
to the essence and referring
exclusively to the necessity
of including the words, of
imminent danger of one or
the other, I wish to say the
following: that it should not
be necessary that there exists
a rebellion, insurrection, or
invasion in order that habeas
corpus may be suspended. It
should be sufficient that there

exists not a danger but an

imminent danger, and the
word, imminent, should be
maintained. When there
exists an imminent danger,
the State requires for its
protection and for that of all
the citizens the suspension of
habeas corpus.'
"When put to vote for
the
second
time,
the
amendment was defeated
with 72 votes against and 56
votes in favor of the same." (I
Aruego's Framing of the
Philippine Constitution, pp.
180-181)
Nevertheless when the President's
specific powers under Article VII, were
taken up, there was no objection to his
authority to suspend in case of "imminent
danger". (At least we are not informed of
any debate thereon.) Now then, what is the
effect of the seeming discrepancy?.
Is the prohibition of suspension in
the bill of rights to be interpreted as
limiting Legislative powers only - not
executive measures under section VII? Has
Article VII (sec. 10) pro tanto modified
the bill of rights in the same manner that a
subsequent section of a statute modifies a
previous one?.
The difference between the two
constitutional provisions would seem to
be:
whereas
the
bill
of
rights impliedly denies suspension in case
of imminent danger of invasion etc.,

Article VII sec. 10 expressly authorizesthe

President to suspend when there is
imminent danger of invasion etc.
The following statements in a
footnote in Cooley's Constitutional
limitations (8th Ed.) p. 129, appear to be
persuasive:
"It is a general rule in
the construction of writings,
that,
a
general
intent
appearing, it shall control the
particular intent; but this rule
must sometimes give way,
and effect must be given to a
particular
intent
plainly
expressed in one part of a
constitution,
though
apparently opposed to a
general intent deduced from
other parts. Warren V.
Shuman, 5 Tex. 441. In Quick
V. Whitewater Township, 7
Ind. 570, it was said that if
two provisions of a written
constitution are irreconcilably
repugnant, that which is last
in order of time and in local
position is to be preferred. In
Gulf, C. & S. F. Ry. Co. v.
Rambolt, 67 Tex. 654, 4 S. W.
356, this rule was recognized
as a last resort, but if the last
provision
is
more
comprehensive and specific,
it was held that it should be
given effect on that ground."

And in Hoag vs. Washington

Oregon Corp. (1915) 147 Pac. Rep., 756 at
p. 763 it was said:
"It is a familiar rule of
construction that, where two
provisions of a written
Constitution are repugnant to
each other, that which is last
in order of time and in local
position is to be preferred.
Quick v. White Water
Township, 7 Ind. 570; G., C.
& S. F. Ry. Co. v. Rambolt,
67 Tex. 654, 4 S. W. 356. So,
even assuming the two
clauses
discussed
are
repugnant, the latter must
prevail."
Wherefore in the light of these
precedents, the constitutional authority of
the President to suspend in case of
imminent danger of invasion, insurrection
or rebellion under Article VII may not
correctly be placed in doubt.
E.The petitioner insisted in the
court below that the suspension should not
apply to his son, because the latter had
been arrested and had filed the petition
before the Executive proclamation. On this
phase of the controversy, it is our opinion
that the order of suspension affects the
power of the courts and operates
immediately on all petitions therein
pending at the time of its promulgation.
"A proclamation of
the President suspending the
writ of habeas corpus was

held valid and efficient in law

to suspend all proceedings
pending upon habeas corpus,
which was issued and served
prior to the date of the
proclamation.
Matter
of
Dunn, D. C. N. Y. 1863, 25
How. Prac. 467, Fed. Cas.
No. 4,171."
F.Premises considered, the decision
of the court a quo refusing to release the
prisoner is affirmed, without costs.
||| (Montenegro v. Castaeda, G.R. No. L4221, [August 30, 1952], 91 PHIL 882-890)
[G.R. No. 158737. August 31, 2004.]
CIVIL
SERVICE
COMMISSION, petitioner, vs.
SATURNINO
DE
LA
CRUZ, respondent.

DECISION

CORONA, J p:
Before us is a petition for certiorari under
Rule 45 of the Revised Rules of Court,
seeking to review and set aside the May 14,
2003 decision 1 and June 17, 2003
resolution 2 of the Court of Appeals in CAG.R. SP No. 54088, entitled Saturnino de la
Cruz vs. Civil Service Commission. In that
decision, the appellate court set aside CSC

Resolution Nos. 98-2970 and 99-1451,

consequently approving Saturnino de la Cruz
appointment as Chief of the Aviation Safety
Regulation Office.
The pertinent facts, 3 as narrated by the Office
of the Solicitor General, follow.
Respondent Saturnino de la
Cruz is an employee of the
Air Transportation Office,
DOTC, presently holding the
position of Chief Aviation
Safety Regulation Officer of
the Aviation Safety Division.
Respondent
was
promotionally appointed to
the
said
position
on
November 28, 1994, duly
attested by the Civil Service
Commission (CSC). But prior
thereto, he was a Check Pilot
II in the Air Transportation
Office (ATO).
In a letter dated February 9,
1995, Annabella A. Calamba
of the Aviation Security
Division of the ATO formally
filed with the Department of
Transportation
and
Communication (DOTC) her
protest
against
the
promotional appointment of
respondent as Chief Aviation
Safety Regulation Officer,
claiming among others that
respondent did not meet the

four-year
supervisory
requirement for said position.
On July 20, 1995, then
DOTC Secretary Jesus B.
Garcia rendered a decision
finding the protest without
merit.
Apparently
dissatisfied,
Calamba
appealed
the
decision of the DOTC
Secretary to the CSCNCR. HIESTA
Under date of October 17,
1995,
Director
Nelson
Acebedo
of
CSC-NCR
requested ATO Executive
Director Manuel Gilo to
comment on the appeal and to
submit to the CSC-NCR the
documents pertinent thereto.
Since the CSC-NCR received
no action on said request for
comment, the CSC-NCR
again wrote Director Gilo
regarding the matter on May
5, 1997. But to no avail.
On October 14, 1997, for the
last time, the CSC-NCR
reiterated to Director Gilo its
request for comment.
On November 18, 1997, the
CSC-NCR
rendered
its
decision
upholding
the
protest of Calamba and
recalling the approval of

respondents appointment as
Chief
Aviation
Safety
Regulation Officer. Said the
CSC-NCR:
After
an
initial
evaluation of the
protest, we find that
the only issue to be
resolved is whether or
not the protestee
meets the minimum
experience
requirements as of the
date of the protestees
appointment to the
contested
position.
The
contested
position requires four
years
of
work
experience
in
position/s involving
management
per
Qualification
Standards
Manual
prescribed by MC No.
46, s. 1993 and/or
four
years
of
experience
in
planning, organizing,
directing,
coordinating
and
supervising
the
enforcement of air
safety laws, rules and
regulations pertaining
to licensing, rating
and checking of all
airmen and mechanics

and regulation of the

activities of flying
schools per ATO
Qualification
Standards . . .
xxx xxx xxx
Taking into account
his previous positions,
Mr. dela Cruz could
not have exercised
managerial
or
supervisory functions
for
the
required
number of years. . .
Moreover, vis--vis
the
experience
requirements of the
approved
ATO
Qualification
Standards, Mr. dela
Cruz
work
experience prior to his
appointment to the
contested position did
not concur therewith.
We are of the view
therefore,
that
experience-wise, Mr.
dela Cruz did not
meet the requirements
of
the
contested
position as of the date
of his appointment
thereto.
xxx xxx xxx."

Under date of December 11,

1997, ATO Director Gilo
wrote the CSC-NCR asking
for the suspension of the
order recalling respondents
appointment, citing several
reasons in support thereof.
Subsequently,
a
Manifestation with Motion to
Admit Addendum dated
December 22, 1997 was filed
by Director Gilo with the
CSC-NCR. Director Gilo
argued that Calamba had no
legal personality to file a
protest because she is not a
qualified next-in-rank and
that the protest was filed out
of time. He likewise asserted
that respondent had fully met
the qualifications required of
the position.
On January 5, 1998, CSCNCR Director Acebedo ruled
that there is no cogent reason
to disturb earlier rulings on
the matter. He also denied
ATO Director Gilos request,
for lack of merit.
Strangely, in a letter dated
January 13, 1998, CSC-NCR
Director Acebedo granted
Director Gilos request and
affirmed the approval of
respondents appointment as
Chief
Aviation
Safety
Regulation Officer. He said:

"xxx xxx xxx.

We reviewed again
the
documents
including the Office
Orders
designating
protestant dela Cruz
to
supervisory
position which were
obviously
issued
during the latter part
of 1993. A liberal
consideration thereof
would come up with a
little over one year of
supervisory
and
managerial
experience. Certainly,
he was short of the
required number of
years
of
work
experience for the
contested position as
of the date of the issue
of his appointment.
Nevertheless,
considering that Mr.
dela Cruz has already
in his favor at least
four
years
of
continuous
supervisory/manageri
al experience from his
designation as Acting
Chief of the Aviation
Safety
Regulation
Division, supervened
by his permanent
appointment thereto

as Chief thereof in
November 28, 1994,
up to present, he has
substantially satisfied
the
four
years
experience required
for appointment to the
contested position.
xxx xxx xxx."
In a letter dated January
1998, Calamba requested
CSC to implement
January 5, 1998 ruling of
CSC-NCR.

26,
the
the
the

When asked by the CSC to

clarify the conflicting rulings,
CSC-NCR Director Acebedo
explained that the January 5,
1998 ruling is unofficial and
inexistent.
The CSC treated Calambas
request as an appeal. On
November 13, 1998, the CSC
rendered its Resolution No.
98-2970, the decretal portion
of which reads:
WHEREFORE, the
appeal of Annabella
A. Calamba is hereby
granted.
The
appointment
of
Saturnino De la Cruz
as Chief Aviation
Regulation Officer is
disapproved. De la
Cruz
is
hereby

reverted to his former

position.
xxx xxx xxx."
Acting on the request for
reconsideration
filed
by
respondent, the CSC rendered
its Resolution No. 99-1451
on July 6, 1999, the
dispositive portion of which
reads:
WHEREFORE, the
instant motion for
reconsideration
of
Saturnino dela Cruz is
hereby
denied.
Accordingly,
CSC
Resolution No. 982970 dated November
13, 1998 stands.
On August 11, 1999, respondent filed a
petition for review with the Court of Appeals,
docketed as CA-G.R. SP No. 54088, seeking
to nullify CSC Resolution Nos. 98-2970 and
99-1451.
In a decision 4 dated March 14, 2003, the
Court of Appeals granted the petition by
setting aside CSC Resolution Nos. 98-2970
and 99-1451 and approving respondents
appointment as Chief of the Aviation Safety
Regulation Office.
Petitioners motion for reconsideration was
subsequently denied in a resolution issued on
June 17, 2003.
Hence, the instant petition for review.

Petitioner contends that the appellate court

erred in approving respondents appointment
as Chief Aviation Safety Regulation Officer
despite his failure to meet the minimum fouryear managerial and supervisory qualification
for the position. It further contends that
respondents completion of the required
experience during the pendency of the present
case cannot be counted in his favor because
compliance with the prescribed mandatory
requirements should be as of the date of
issuance of the appointment and not the date
of approval by the CSC or the resolution of
the protest against the appointment.

ing, and
supervisi
ng
the
enforcem
ent of air
safety
laws,
rules,
and
regulatio
ns
pertainin
g
to
licensing
, rating
and
checking
of
all
airmen
and
mechani
cs
and
the
regulatio
n of the
activities
of flying
schools.

The petition lacks merit.

Contrary to petitioners contention, respondent
has sufficiently complied with the required
experience standards.
First, upon the issuance of respondents
appointment on November 28, 1994, the
qualification standards of the DOTC for the
position of Chief Aviation Safety Regulation
Officer were as follows:
EDUCATION: Bachelors
Degree
related to
Aviation
EXPERIENCE: 4 years of
experien
ce
in
planning,
organizin
g,
directing
,
coordinat

License

required:

Airline
Transpor
t
Rating/Fl
ight
Operatio
ns
Officer/
Aircraft
Maintena

nce
Engineer
(A&P)
License/
Flight
Engineer
License
TRAINING: In-service
training
in
manage
ment;
specializ
ed
course in
aircraft
maintena
nce/air
carrier
operation
s/flight
dispatchi
ng/aircra
ft
accident
investiga
tion/equi
pment
qualificat
ion
course/fli
ght
training
(local &
abroad)
ELIGIBILITY: Relevant RA
1080 Car
eer

Service
Prof. 1st
Grade
Relevant

Eligibility for
Second
Level
Position
5

As noted by the CSC-NCR, 6 the contested

position required four years of work
experience in managerial position(s) per the
Qualification Standards Manual prescribed by
MC No. 46, s. 1993 and/or four years of
experience in planning, organizing, directing,
coordinating and supervising the enforcement
of air safety laws, rules and regulations
pertaining to licensing, rating and checking of
all airmen and mechanics and regulation of the
activities of flying schools per the abovestated ATO-DOTC Qualification Standards.
Petitioners insistence that respondent failed to
meet the four-year managerial and supervisory
experience requirement is misplaced. It is a
well-settled rule in statutory construction that
the use of the term and/or means that the
word and and the word or are to be used
interchangeably. 7 The word or is a
disjunctive term signifying dissociation and
independence
of
one
thing
from
another. 8 Thus, the use of the disjunctive term
or in this controversy connotes that either
the standard in the first clause or that in the
second clause may be applied in determining
whether a prospective applicant for the
position under question may qualify.

Respondent would indeed lack the required

years of work experience to qualify for the
contested position if the managerial standards
in the first clause above were to be strictly
followed. At the time of his permanent
appointment on November 28, 1994 as Chief
Aviation
Safety
Regulation
Officer,
respondent had a little over one year of
managerial experience from his designation as
Acting Chief of the Aviation Safety Division
during the latter part of 1993. However, the
work already rendered by respondent in the
ATO at the time of his appointment was well
within the supervisory standard in the second
clause. Planning, organizing, directing,
coordinating and supervising the enforcement
of air safety laws, rules and regulations
pertaining to licensing, rating and checking of
all airmen and mechanics and regulation of the
activities of flying schools were part of the
work performed by respondent for more than
13 years prior to his appointment.
Before respondent was appointed to the
contested position, he had held several other
positions in the ATO, namely:
March 6, 1981 to
1981 Supply Checker

July

15,

July 16, 1981 to February 5,

1983 Junior
Aeronautical
Engineer
February 6, 1983 to February 29,
1984 Air
Carrier
Safety
Inspector
March 1, 1984 to February 28,
1987 Check Pilot I

March 1, 1987 to November 27,

1994 Check Pilot II
November 28, 1994 to date Chief
Aviation
Safety
Regulation Officer 9
These positions, spanning more than 13 years,
in four of the five sections of the Aviation
Safety Division of the ATO definitely met the
minimum supervisory experience required of
respondent for the position.
In Rapisora
vs.
Civil
Service
Commission, 10 this Court held that the rule
that appointees must possess the prescribed
mandatory requirements cannot be so strictly
interpreted as to curtail an agencys
discretionary power to appoint, as long as the
appointee possesses other qualifications
required by law. The appellate court was
therefore correct in setting aside the assailed
CSC resolutions and considering the
respondents total work experience as
sufficient to meet the supervisory standards
under the second clause, thereby finding
respondent qualified for appointment to the
contested position.
Second,
respondents
promotional
appointment was issued in accordance with
petitioners selection process. Respondent
passed the rigid screening of the ATO
Personnel Selection/Promotion Board as well
as the oral and written examinations of the
DOTC Selection Board.
DOTC Assistant Secretary
Villaruel, Jr. noted that:

Panfilo

1. Capt. dela Cruz has been

with
the
Air

V.

Transportation Office
for more than 13
years already and
during such period, he
faithfully
and
efficiently (served in)
four of the five
sections
of
the
Aviation
Safety
Division of which the
position
under
consideration is the
head, thereby gaining
more
varied
experience
and
working knowledge
of the most important
and
sensitive
functions
of
the
Division over other
applicants;
2. The recommendee always
performs his assigned
tasks promptly with
dedication, integrity,
high
sense
of
responsibility
and
professionalism which
he had demonstrated
when he established
and developed the
Airport Crash Rescue
Organization (ACRO)
procedure to various
national airports of
the country, and when
he organized the Air
Transportation Office

(ATO)
Operations
Center which is now
on
a
24-hour
operation and serving
as the nerve center of
this Office;
3. He is a dedicated public
servant and is always
willing to respond to
call of duty even
beyond office hours
like when he is flying
the ATOs aircraft for
navigation aide check
during holidays and
weekends, aside from
conducting checkride
to airmen prior to
issuance of the pilot
license;
4. Capt. dela Cruz is an
outstanding
team
worker as well as a
leader and promotes
enthusiasm among coworkers. He handles
all areas of job with
minimal supervision
and
accomplishes
objectives efficiently.
He accepts stress
situations
and
performs extremely
well. 11
Because of respondents excellent credentials,
DOTC Assistant Secretary for Administrative
and Legal Affairs Wilfredo M. Trinidad, chair

of the Personnel Selection Board, strongly

recommended his promotional appointment to
the contested position.
Third, respondents multifarious experiences
and trainings 12 in air transportation were
taken into account when he was chosen for the
subject position. Respondent not only showed
a continuing interest to improve his expertise
in the field of air transportation, he also
acquired an Airline Transport Pilots License
in 1998. 13 As a privileged holder of such
license, respondent exercised administrative
supervision and control over pilots, cabin and
crew members to ensure compliance with air
safety laws, rules and regulations.
In addition, respondents dedication to the
service
was
demonstrated
by
his
conceptualization and establishment of the
Airport Crash Rescue Organization (ACRO)
procedure in various national airports in the
country to ensure the security of both airport
personnel and passengers. Respondent also
organized the Air Transportation Office
Operations Center which now provides air
service assistance on a 24-hour basis.
Because of respondents commendable
performance, he was designated Chief of the
Air Transportation Office Operations Center in
1993 per Office Order No. 178-93, 14 in
addition to his duties as Check Pilot II. He was
also designated Acting Chief, Aviation Safety
Division, of the ATO per Office Order No.
211-93. 15
In Teologo
vs.
Civil
Service
Commission, 16 the Supreme Court ruled:

Promotions in the Civil

Service should always be
made on the basis of
qualifications,
including
occupational
competence,
moral character, devotion to
duty, and, not least important,
loyalty to the service. The last
trait should always be given
appropriate weight, to reward
the civil servant who has
chosen
to
make
his
employment
in
the
Government a lifetime career
in which he can expect
advancement through the
years for work well done.
Political patronage should not
be necessary. His record
alone should be sufficient
assurance that when a higher
position becomes vacant, he
shall be seriously considered
for the promotion and, if
warranted, preferred to less
devoted aspirants.
As stated by ATO Executive Director Manuel
Gilo in his letter to CSC-NCR Director Nelson
Acebedo, a proven excellent performance of
a person is better than just experience by
occupying a position but lacks dedication to
duty, strong leadership and technical knowhow. 17
It is elementary in the law of public officers
that the power to appoint is in essence
discretionary on the part of the proper
authority. In Salles vs. Francisco, et al., 18 we
had occasion to rule that, in the appointment

or promotion of employees, the appointing

authority considers not only their civil service
eligibilities but also their performance,
education, work experience, trainings and
seminars attended, agency examinations and
seniority. Consequently, the appointing
authority has the right of choice which he may
exercise freely according to his best judgment,
deciding for himself who is best qualified
among those who have the necessary
qualifications and eligibilities. The final
choice of the appointing authority should be
respected and left undisturbed. Judges should
not substitute their judgment for that of the
appointing authority. DaCTcA
In the appointment of division chiefs, as in this
case, the power to appoint rests on the head of
the department. Sufficient if not plenary
discretion should be granted to those entrusted
with the responsibility of administering the
offices concerned. They are in a position to
determine who can best fulfill the functions of
the office vacated. 19 Not only is the
appointing authority the officer primarily
responsible for the administration of the
office, he is also in the best position to
determine who among the prospective
appointees can efficiently discharge the
functions of the position. 20
Respondent was the uncontested choice of the
appointing authority. Then DOTC Secretary
Jesus B. Garcia dismissed the protest against
respondents appointment. ATO Executive
Director Gilo also noted respondents full
compliance with the qualifications for the
position. CSC-NCR Director Acebedo, who
previously recalled respondents appointment,
later affirmed it after a re-evaluation of the

case and declared his

unofficial and inexistent.

previous

ruling

Clearly then, there is no reason to disapprove

the appointment of respondent as Chief of the
Aviation Safety Regulation Office considering
that he is fully qualified and evidently the
choice of the appointing authority. Between
the Commission and the appointing authority,
we sustain the latter. 21 Every particular job
in an office calls for both formal and informal
qualifications. Formal qualifications such as
age, number of academic units in a certain
course, seminars attended, etc., may be
valuable but so are such intangibles as
resourcefulness, team spirit, courtesy,
initiative, loyalty, ambition, prospects for the
future and best interest of the service. Given
the demands of a certain job, who can do it
best should be left to the head of the office
concerned provided the legal requirements for
the office are satisfied. 22
We, however, agree with petitioner that the
reckoning point in determining the
qualifications of an appointee is the date of
issuance of the appointment and not the date
of its approval by the CSC or the date of
resolution of the protest against it. We need
not rule on petitioners assertion that
respondents subsequent compliance with the
experience standards during the pendency of
the case should not be counted in his favor
since respondent was anyway qualified for the
position at the time of his appointment.
But even assuming for the sake of argument
that respondent failed to meet the experience
requirement to qualify for the contested
position, we are still inclined to uphold the

appellate courts approval of respondents

appointment. Petitioner itself has, on several
occasions, allowed the appointment of
personnel who were initially lacking in
experience but subsequently obtained the
same.
In Civil Service Commission Resolution No.
97-0191 dated January 9, 1997, it ruled thus:
A careful evaluation of the
qualifications
of
Josue
reveals that he meets the
education,
training
and
eligibility requirements of the
position. Considering that
Josue has already in his favor
three (3) years and eight (8)
months experience as Senior
Inspector up to the present,
he has substantially satisfied
the four (4) years experience
required for the appointment
as Chief Inspector.
Following petitioners line of reasoning,
respondent is deemed to have satisfactorily
complied with the experience requirement for
the contested position when he was designated
Chief of the ATO Operations Center and
Acting Chief of the ATO Aviation Safety
Division. Having held said positions from
1993 to the present, respondent may be
considered to have acquired the necessary
experience for the position.
WHEREFORE, the instant petition is hereby
DENIED. The decision of the Court of
Appeals setting aside CSC Resolution No. 98-

2970 and CSC Resolution No. 99-1451 is

AFFIRMED. The appointment of Saturnino de
la Cruz as Chief Aviation Safety Regulation
Officer is APPROVED.
SO ORDERED.
||| (Civil Service Commission v. De la Cruz,
G.R. No. 158737, [August 31, 2004], 480
PHIL 899-914)
[G.R. No. 79582. April 10, 1989.]
REPUBLIC
OF
THE
PHILIPPINES, petitioner, vs. COUR
T OF APPEALS, HEIRS OF
NICOLAS FELISILDA, namely:
CATALINA ASERTO VDA. DE
FELISILDA,
MAGDALENA,
TIRSO,
MELECIO,
PEDRO,
ANICETA, VICENTE, all surnamed
FELISILDA;
SPS.
MANUEL
SERRANILLO AND PAULINA
VELASQUEZ; SPS. FRANCISCO
LAIZ AND REMEDIOS LUNA;
AND THE REGISTER OF DEEDS
OF
KORONADAL,
SOUTH
COTABATO,respondents.
SYLLABUS
1. CIVIL LAW; PUBLIC LAND ACT;
APPLICATION FOR FREE PATENT; HEIRS
OF APPLICANT SUBROGATED TO ALL
THE RIGHTS AND OBLIGATIONS OF
THEIR
PREDECESSOR-IN-INTEREST
WHO HAD PERFECTED HIS RIGHT AS

SETTLER; CASE AT BAR. We are not

persuaded that falsification attended the filing
of the Application for Free Patent. It should be
recalled that in a Second Indorsement of the
District Land Office, dated 11 July 1973, its
Officer, Buenaventura M. Gonzales, stated
that the lot in question was applied for by
Nicolas Felisilda under Free Patent No. 37175, on 11 October 1960 (Exhibit "3"). That
was during his lifetime. The Application was
not acted on, however, until much later. In
fact, it was formally considered only on 11
October 1963 and bore the same number, Free
Patent No. 37-175. It was only upon the
entreaties of Nicolas Felisilda's widow,
Catalina, that Lands Inspector Cejas acted
upon and processed the Application. While
inefficiency was apparent, it cannot be equated
with irregularity for, pursuant to Section 105
of the Public Land Law, the heirs of an
applicant are entitled to have the Patent issued
to them if they show compliance with
requirements. They are subrogated to all the
rights and obligations of their predecessor-ininterest who, in this case, had perfected his
rights as a settler prior to his death as shown
by: the Certificate of Permanent Assignment
dated 24 December 1949 by the Farm
Administrator of the Polomolok Settlement
District (Exhibit "1"); the Status Report of 19
March 1954 by the Public Land Inspector
Bienvenido M. Abrea confirming compliance
with possession and cultivation requirements
of a settler (Exhibit "2"); and the Certification
of District Land Officer Buenaventura M.
Gonzales on 11 July 1973 (Exhibit "3").
Collusion cannot justifiably be claimed among
the said officials and the widow of Nicolas,
the dates of execution of the documents being

far apart. On the contrary, the presumption

that official duties were regularly performed
must be upheld.
2. ID.; ID.; DIRECTOR OF LANDS; HAS
THE
RIGHT
AND
DUTY
TO
INVESTIGATE AN ALLEGED FRAUD IN
SECURING A FREE PATENT. It is not
merely his right but his specific duty to
conduct investigations of alleged fraud in
securing Free Patents and the corresponding
titles thereto. "In the light of the facts
disclosed in the foregoing stipulation, We
reiterate Cebede vs. Director of Lands, G.R.
No. L-12777, May 22, 1961, 2 SCRA 25,
wherein We held that it is not only the right
but the duty of the Director of Lands to
conduct the investigation of any alleged fraud
in securing a free patent and the corresponding
title to a public land and to file the
corresponding court action for the reversion of
the same to the State, if the facts disclosed in
the course of such investigation should so
warrant. Consequently, prohibition cannot be
issued to enjoin such an investigation despite
the existence of a Torrens title" (cited in
Piero, Jr. vs. Director of Lands, L-36507,
June 14, 1974, 57 SCRA 386).
3. ID.; LAND REGISTRATION ACT;
INDEFEASIBILITY OF TITLE ISSUED
BASED ON FREE PATENT; NOT A BAR TO
AN INVESTIGATION BY THE DIRECTOR
OF LANDS AS TO THE MANNER OF
ACQUIRING SUCH TITLE. It is true that
under Section 122 of the Land Registration
Act a title issued on the basis of a Free Patent
is as indefeasible as one judicially secured.
That indefeasibility, however, is not a bar to an
investigation by the Director of Lands as to

how such title had been acquired, if the

purpose of such investigation is to determine
whether or not fraud had been committed in
securing such title in order that the appropriate
action for reversion may be filed by the
Government.
4. ID.; ID.; ID.; ID.; RATIONALE. "It is
true that under Section 122 of the Land
Registration Act, a Torrens title issued on the
basis of a free patent or a homestead patent is
as indefeasible as one judicially secured. And
in repeated previous decisions of this Court
that indefeasibility has been emphasized by
Our holding that not even the Government can
file an action for annulment, but at the same
time, it has been made clear that an action for
reversion may be instituted by the Solicitor
General, in the name of the Republic of the
Philippines (Director vs. De Luna, 110 Phil.
28; Republic vs. The Heirs of C. Carle, 105
Phil. 1228; Panimdim vs. Director, 11 SCRA
628; and the cases therein cited). It is to the
public interest that one who succeeds in
fraudulently acquiring title to a public land
should not be allowed to benefit therefrom,
and the State should, therefore, have an ever
existing authority, thru its duly authorized
officers, to inquire into the circumstances
surrounding the issuance of any such title, to
the end that the Republic, thru the Solicitor
General or any other officer who may be
authorized by law, may file the corresponding
action for the reversion of the land involved to
the public domain, subject thereafter to
disposal to other qualified persons in
accordance with law. In other words, the
indefeasibility of a title over land previously
public is not a bar to an investigation by the

Director of Lands as to how such title has

been acquired, if the purpose of such
investigation is to determine whether or not
fraud had been committed in securing such
title m order that the appropriate action for
reversion may be filed by the Government"
(Piero vs. Director of Lands, supra).

of the homestead within five years after the

grant of the patent is mandatory, the purpose
of the law being to promote a definite public
policy, which is to preserve and keep in the
family of the patentee that portion of the
public land which the State has gratuitously
given to them.

5. ID.; ID.; PRESCRIPTION OF ACTION

FOR CANCELLATION OF FREE PATENT;
DOES NOT RUN AGAINST THE STATE.
In so far as the timeliness of the action of the
Government is concerned, it is basic that
prescription does not run against the State
(Article 1108, Civil Code; Republic vs.
Rodriguez, L-18967, January 31, 1966, 16
SCRA 53). "Public land fraudulently included
in patents or certificates of title may be
recovered or reverted to the State in
accordance with Section 101 of the Public
Land Act. Prescription does not lie against the
State in such cases for the Statute of
Limitations does not run against the State. The
right of reversion or reconveyance to the State
is not barred by prescription" (Republic vs.
Hon. Animas, L-37682, March 29, 1974, 56
SCRA 499).

7. ID.; ID.; SALE OF HOMESTEAD HELD

AS PERFECTED WITHIN THE FIVE-YEAR
PROHIBITORY PERIOD; CASE AT BAR.
The Deeds of Sale executed by Felisilda's
widow only on 14 June 1972 in favor of
Serranillo (Exhibit "4") and Laiz (Exhibit "5")
cannot overcome the fact that as early as 1970
Serranillo was already exercising acts of
ownership over the land in question.
Indications are that the sales were actually
perfected within the prohibitory period but the
Deeds of Sale were made to appear as
executed only on 14 June 1972 or five (5)
years and two (2) months after the issuance of
the Patent on 14 April 1967. The 1972 Deeds
were
evidently
merely
confirmatory
documents designed to circumvent the
prohibition against alienation within a period
of five (5) years. "The law prohibiting any
transfer or alienation of homestead land within
five years from the issuance of the patent does
not distinguish between executory and
consummated sales; and it would hardly be in
keeping with the primordial aim of this
prohibition to preserve and keep in the family
of the homesteader the piece of land that the
state had gratuitously given to them. To hold
valid a homestead sale actually perfected
during the period of prohibition but with the
execution and the delivery of possession of the
land sold to the buyer deferred until after the

6. ID.; PUBLIC LAND ACT; THE STATE

PURPOSE OF THE MANDATORY FIVEYEAR PROHIBITORY PERIOD WITHIN
WHICH TO SELL OR ENCUMBER LAND
REQUIRED. Section 118 of the Public
Land Act provides that lands acquired under
Free Patent shall not be subject to
encumbrance or alienation from the date of the
approval of the application and for a term of
five years from and after the date of the
issuance of the patent. The provision of the
law which prohibits the sale or encumbrance

expiration of the prohibitory period, purposely

to circumvent the very law that prohibits and
declares invalid each transaction to protect the
homesteader and his family (Mansano vs.
Ocampo, L-14778, February 28, 1961, 1
SCRA 691, 697).
8. ID.; ID.; FINDINGS OF FACT OF THE
DIRECTOR OF LANDS AS APPROVED BY
THE SECRETARY AND NATURAL
RESOURCES GENERALLY CONCLUSIVE;
REVIEWABLE ONLY IN A DIRECT
PROCEEDING IN COURTS. The decision
of the Director of Lands as to questions of
fact, when approved by the Secretary of
Agriculture & Natural Resources is conclusive
(Vda. de Calibo vs. Ballesteros, L-17466,
September 18, 1965, 15 SCRA 37;
Ramirez vs. CA, L-28591, October 31, 1969,
30 SCRA 297). However, it has also been held
that a Court may review a decision of the
Director of Lands in a direct proceeding
therefor, as in this case, and not collaterally
(Firmelo vs. Tutaan, L-35408, October 27,
1972, 53 SCRA 505). Thus, it is that we find
ourselves in disagreement with his finding that
the Patent had been fraudulently issued and
that there was falsification. In fact, the charge
of Falsification of Public Document was
rejected twice in succession by the Resolution
of the Provincial Fiscal of General Santos City
on 23 March 1972 (Exhibit "8" Laiz), and
by the Court of First Instance of General
Santos in Crim. Case No. 732 on 8 July 1976
(Exhibit "7" Laiz).
9. ID.; ID.; ALIENATION OF HOMESTEAD
WITHIN THE PROHIBITORY PERIOD;
EFFECT THEREOF. While we affirm the
finding of non-falsification by both the Trial

Court and the Appellate Court, we are

allowing reversion to the State on the ground
that the Disputed Property was disposed of
within the prohibitory period, following the
explicit provisions of Section 124 of
the Public Land Act, reading: "Sec. 124. Any
acquisition, conveyance, alienation, transfer,
or other contract made or executed in violation
of any of the provisions of sections 118, 120,
121, 122 and 123 of this Act shall be unlawful
and null and void from its execution and shall
produce the effect of annulling and cancelling
the grant, title, patent, or permit originally
issued, recognized or confirmed, actually or
presumptively, and cause the reversion of the
property and its improvement to the State."

DECISION

MELENCIO-HERRERA, J p:
The Republic of the Philippines (Republic, for
brevity), through the Solicitor General, seeks
to assert its title, by reversion, to a Free Patent
and derivative titles therefrom, issued in favor
of private respondents. Thus, it prays for the
review and reversal of the Decision of
respondent Court of Appeals of 13 August
1987 1 which affirmed, except as to costs
against the Government, the Decision of the
Regional Trial Court of General Santos City,
Branch 12, 2 declaring (a) Free Patent No.
326416, issued in favor of Nicolas Felisilda on
14 April 1967 for Lot No. 2198 on Plan Pls209-D-11 situated at Dole Cannery Site,
Polomolok, South Cotabato, (b) Original

Certificate of Title No. P-29004, as well as (c)

all derivative Transfer Certificates of Title, as
valid and binding.
The prefatory facts follow:
Sometime in 1941, the late Nicolas Felisilda,
as a settler of the National Land Settlement
Administration (NLSA), was assigned Farmlot
No. 1279 (later re-numbered as Lot No. 2198,
Pls-209-D-11) and Homelot No. 200, both
situated in Polomolok, South Cotabato, with
an area of 11.8822 hectares (the disputed
Property, for easy reference). On 24 December
1949, a Certificate of Permanent Assignment
of said lots was issued to him by the Farm
Administrator of Polomolok Settlement
District (Exhibits "1", "1-A" to "1-D").
On 19 March 1954, Senior Inspector
Bienvenido Abrea of the Land Settlement and
Development
Corporation,
Polomolok
Settlement District, rendered a Status Report
attesting to Felisilda's actual possession and
occupancy (Exhibits "2", "2-A" to "2-D").
On 11 October 1960, Nicolas Felisilda filed
Free Patent Application No. 37-175 for the
Disputed Property with the Bureau of Lands,
through Lands Inspector Vicente Gal Cejas as
shown by a Second Indorsement dated 11 July
1973 by District Land Officer, Buenaventura
M. Gonzales (Exhibit "3").
On 10 October 1962, Nicolas Felisilda died
(Exhibit "H").
In the meantime, Free Patent Application No.
37-175 remained unacted upon and
unprocessed as it was not supported by a Joint
Affidavit of two (2) disinterested witnesses. It

was only sometime in 1963, or after the death

of Nicolas Felisilda, when Lands Inspector
Cejas acted upon said application and
processed it, after Felisilda's widow, Catalina
Felisilda, sought his help in expediting action
on her husband's application.
Thus, it was only on 11 October 1963 that the
Application for Free Patent signed by Nicolas
Felisilda was formally presented, subscribed
and sworn to before Lands Inspector Cejas. In
the same document two (2) witnesses,
Flaviano Salada and Paterna Cortes,
subscribed and swore to a Joint Affidavit in
support of the Free Patent Application
(Exhibits "G, "G-1" to "G-4").
On 27 October 1963 a Notice of Application
for Free Patent, with a certification of posting
by Nicolas Felisilda, subscribed and sworn to
before Lands Inspector Cejas, was released by
the Bureau of Lands. The affiant was stated to
have exhibited his Residence Certificate No.
A-4968202 issued at Polomolok, South
Cotabato on 18 February 1963 (Exhibits "J",
"J-1" J-2").
On 31 October 1963, Inspector Cejas
submitted a Certification to the Director of
Lands that upon ocular inspection of the land
covered by Free Patent Application No. 37175, he found that the applicant had been in
continuous occupation and cultivation thereof
since 1941; that the applicant "is still living"
(Exhibit "I-2"); that it was free from claims
and conflicts at the time of inspection; and
recommending that patent be issued to the
applicant (Exhibit "I").

On 20 March 1967 the Bureau of Lands

approved the Application and ordered the
issuance of Patent (Exhibit "L").
On 14 April 1967 Free Patent No. 326416 was
issued to Nicolas Felisilda, for Lot No.
2198, Pls-209-D-11 followed by the issuance
of the corresponding Original Certificate of
Title No. (P-29004) P-11128 on 9 May 1967
(Exhibit "M"). This was subsequently
cancelled and Transfer Certificate of Title No.
T10450 was issued in the name of the Heirs of
Nicolas Felisilda after an extrajudicial
settlement had been executed by them (Exhibit
"1-A").
On 14 June 1972, for and in consideration of
the sum of P120,000.00 the Heirs of Nicolas
Felisilda sold 9.8822 hectares to Manuel
Serranillo, and 2 hectares to Francisco Laiz for
P60,000.00 (Exhibit "4"), or the totality of the
area covered by the Free Patent. Transfer
Certificates of Title Nos. T-12335 and T-12416
were issued to Serranillo and Laiz, on 11
August 1972 (Exhibit "O") and 15 August
1972 (Exhibit "N"), respectively. It appears
that thereafter Serranillo subdivided the area
sold to him and was issued 307 Transfer
Certificates of Title, all on 20 April 1979
(Exhibits "P", "P-1" to "P-307").
If the Deeds of Sale of 14 June 1972 to
Serranillo and Laiz are to be taken at their face
value, the Disputed Property was sold beyond
the prohibitory period of five (5) years from
the issuance of the Free Patent on 14 April
1967. The Republic stresses, however, that as
early as 1970, or within the proscribed period
for transfer of land covered by a Free Patent,
the Heirs of Nicolas Felisilda had already

alienated portions of the land to Serranillo and

Laiz except that the formal contracts were not
executed until 1972. Proof of the matter was
that even on 29 September 1970 and 22 April
1971 Serranillo had executed acts of
ownership by entering into notarized contracts
to sell portions of the Disputed Property with
Nena B. Jamila and Pablo Poliquit,
respectively (Exhibits "K", "K-1" to "K-12").
Said contracts carried the letterhead "Matutum
Heights Subd., Manuel Serranillo, Owner;
Tomas D. Bayan, Manager."
On 17 November 1972, a Protest entitled "Sta.
Cruz
Homeowners
Association
Inc.,
Occupant-Claimant-Protestant, vs. Heirs of the
late Nicolas Felisilda represented by Catalina
Vda. de Felisilda, et al., ApplicantRespondent," was filed with the Bureau of
Lands (Exhibit "8"). The grounds relied upon
were that the protestants were the actual
occupants of the controverted land; that the
Free Patent Application filed on 11 October
1963 had been falsified, the patentee having
died in 1962; and that the land in question had
been sold to other parties before the expiration
of five (5) years. Simultaneously, the
Association also filed a Sales Application over
the same property on the same date.
In a 2nd Indorsement dated 11 July 1973 the
District Land Officer Buenaventura M.
Gonzales recommended "that the case be
considered closed and dropped from the
records" since the subject land was already
titled property (Exhibits "3", "3A, "3-B",
Serranillo).
Notwithstanding, in a 1st Indorsement of 15
August 1974, the Director of Lands ordered

the investigation of the Protest (Exhibit "A").

Land Inspector Francisco del Rosario was
assigned as Investigator. After hearings
conducted by him, he recommended the
annulment of the Patent on the principal
grounds that neither Nicolas Felisilda nor his
heirs had continuously occupied or cultivated
the land; that the application filed by them
appears to have been falsified; and that
Section 118 of the Public Land Law, had been
violated (Exhibit "F").
Adopting that recommendation, on 18 June
1976, the Director of Lands rendered a
Decision declaring that Free Patent No.
326416 granted to Nicolas Felisilda was null
and void as it had been fraudulently issued,
and recommending the judicial cancellation of
said patent and title pursuant to Section 91 of
the Public Land Law (C.A. No. 141). The
Ministry of Natural Resources dismissed the
appeal to it on 24 June 1980 and denied a
Motion for Reconsideration on 30 March
1981.
In the meantime also, the widow, Catalina
Felisilda, and Land Inspector Vicente Gal
Cejas were jointly indicted for Falsification of
Public Document in Criminal Case No. 732
before the Court of First Instance of General
Santos. On 8 July 1976, said Court found the
totality of the evidence wanting on the charge
of falsification and absolved both accused
from any criminal liability.
It likewise appears that even as early as 23
March 1972, the Provincial Fiscal of General
Santos City, in a Joint Resolution, had
dismissed I.S. Case No. 155 filed by one
Melquiades Hilaga against the Heirs of

Nicolas Felisilda for Falsification of Public

Document and Reversion of the controverted
property, and denied I.S. Case No. 362 filed
by the Sta. Cruz Homeowners Association
against the same Heirs, Manuel Serranillo and
Francisco Laiz for Reversion of the same
property. The Complaint for Falsification was
dropped for lack of basis, Nicolas Felisilda
having been found to have perfected his rights
to the land; while the complaint for reversion
was denied, the Association being without
personality to seek said remedy.
On 1 December 1980, the Republic, as
petitioner, apparently acting upon the
recommendation of the Director of Lands,
filed a Complaint for cancellation of Free
Patent No. 326416, Original Certificate of
Title No. P-29004, and Transfer Certificates of
Title Nos. T-12335 and T-12416 with the then
Court of First Instance of General Santos City
(Civil Case No. 3003). Named as defendants
were the Heirs of Nicolas Felisilda; the
Spouses Serranillo; the Spouses Laiz, and the
Register of Deeds of Koronadal, South
Cotabato. Essentially, the Republic claimed
that actual fraud and deception was practiced
on the Director of Lands considering that the
Application for Free Patent and the Notice of
Application
for
Free
Patent
were
accomplished after the death of the applicant
Nicolas Felisilda, in violation of Section 91 of
the Public Land Law; and that the land was
sold within the prohibitory period of five (5)
years contrary to Section 118 of the same law.
Traversing the Complaint, the defendants
denied the commission of any fraud stating
that the application had been filed by Nicolas
Felisilda during his lifetime but was acted on

officially only after his death; that the sale of

the controverted property was made after the
five-year prohibitory period; that the Patent
and Titles derived therefrom are valid and
binding against the whole world; that
Serranillo and Laiz were purchasers in good
faith; and that majority of the protestants were
mere lessees while the rest had entered the
land later as plain squatters, the place being
near the DOLE cannery site.
After trial, the lower Court dismissed the
Complaint on 3 September 1985, declared the
Free Patent as valid against the whole world
and the corresponding Original Transfer
Certificates of Title as legal and binding, no
fraud having been proven; that the property
had become private land by virtue of the
titling thereof and, therefore, the Director of
Lands no longer had jurisdiction over the
same; and that there was no violation of
Section 91 nor 118 of the Public Land Law.
An appeal was made to the Court of Appeals
which affirmed said judgment in toto on 13
August 1987 except as to costs against the
Government.
Hence, this Petition for Review on Certiorari,
urging that:
1. THE TRIAL COURT
ERRED
IN
HOLDING
THAT THERE WAS NO
FALSIFICATION IN THE
APPLICATION FOR FREE
PATENT
CONSIDERING
THAT THE ALLEGED
APPLICANT,
NICOLAS
FELISILDA,
DIED

ALREADY ON OCTOBER
10, 1962.
2. THE TRIAL COURT
ERRED
IN
HOLDING
THAT THE POWER OF
THE
DIRECTOR
OF
LANDS TO INVESTIGATE
LAND
CONFLICTS
PERTAINS
ONLY
TO
CONFLICTS
OVER
PUBLIC LANDS, HENCE,
HIS
DECISION,
INCLUDING THAT WHICH
WAS RENDERED BY THE
MINISTRY OF NATURAL
RESOURCES, ARE NULL
AND
VOID;
CONSEQUENTLY, AFTER
A FREE PATENT IS
GRANTED, AND THE
CORRESPONDING TITLE
ISSUED,
THE
LAND
CEASES TO BE PART OF
THE
PUBLIC
LAND
DOMAIN AND BECOMES
PRIVATE
PROPERTY
OVER
WHICH
THE
DIRECTOR OF LANDS
LOSES CONTROL AND
JURISDICTION.
3. THE TRIAL COURT
ERRED
IN
HOLDING
THAT THE TITLE HAS
ATTAINED THE STATUS
OF IMPRESCRIPTIBILITY
AND INDEFEASIBILITY,
THE PERIOD OF ONE
YEAR
FROM
ITS

REGISTRATION
LONG LAPSED.

HAVING

4. THE TRIAL COURT

ERRED
IN
HOLDING
THAT THERE WAS NO
VIOLATION
OF
THE
PROVISIONS OF SECTION
118 OF THE PUBLIC LAND
LAW CONSIDERING THAT
THE
DEED
OF
CONVEYANCE IN FAVOR
OF THE DEFENDANTS
WAS
EXECUTED
BEYOND
THE
PROHIBITORY PERIOD OF
FIVE YEARS FROM THE
ISSUANCE
OF
THE
PATENT.
5. THE TRIAL COURT
ERRED IN NOT HOLDING
THAT THE DECISION OF
THE
DIRECTOR
OF
LANDS AS AFFIRMED BY
THE
MINISTER
OF
NATURAL RESOURCES IS
CONCLUSIVE UPON THE
COURTS UNLESS THERE
IS A SHOWING OF ABUSE
OF
DISCRETION
AMOUNTING TO LACK
OF JURISDICTION IN A
PROPER
COURT
PROCEEDING.
We resolved to give due course.
The Issue of Falsification

The Solicitor General maintains that the

falsification lies in the fact that although
Nicolas Felisilda died on 10 October 1962
(Exhibit "H"), when the Application for Free
Patent was filed on 11 October 1963, or one
year after his death, somebody appeared
before the Lands Inspector with Residence
Certificate No. A-4968202, issued at
Polomolok, Cotabato on 18 February 1963
and signed and swore to the truth of the entries
in the Application (Exhibits "G", "G-1 " to "G5"). Nicolas Felisilda himself is also said to
have appeared, signed and sworn to the truth
of the fact that notices regarding his filing of
an application had been posted at the required
places (Exhibits "J", "J-1" and "J-2"). Those
false entries, therefore, according to the
Solicitor General, ipso facto produced the
cancellation of the patent and title emanating
therefrom pursuant to Section 91 of the Public
Land Act. 3
Like the Courts below, we are not persuaded
that falsification attended the filing of the
Application for Free Patent. It should be
recalled that in a Second Indorsement of the
District Land Office, dated 11 July 1973, its
Officer, Buenaventura M. Gonzales, stated
that the lot in question was applied for by
Nicolas Felisilda under Free Patent No. 37175, on 11 October 1960 (Exhibit "3"). That
was during his lifetime. The Application was
not acted on, however, until much later. In
fact, it was formally considered only on 11
October 1963 and bore the same number, Free
Patent No. 37-175. It was only upon the
entreaties of Nicolas Felisilda's widow,
Catalina, that Lands Inspector Cejas acted
upon and processed the Application. While

inefficiency was apparent, it cannot be equated

with irregularity for, pursuant to Section 105
of the Public Land Law, 4 the heirs of an
applicant are entitled to have the Patent issued
to them if they show compliance with
requirements. They are subrogated to all the
rights and obligations of their predecessor-ininterest who, in this case, had perfected his
rights as a settler prior to his death as shown
by: the Certificate of Permanent Assignment
dated 24 December 1949 by the Farm
Administrator of the Polomolok Settlement
District (Exhibit "1"); the Status Report of 19
March 1954 by the Public Land Inspector
Bienvenido M. Abrea confirming compliance
with possession and cultivation requirements
of a settler (Exhibit "2"); and the Certification
of District Land Officer Buenaventura M.
Gonzales on 11 July 1973 (Exhibit "3").
Collusion cannot justifiably be claimed among
the said officials and the widow of Nicolas,
the dates of execution of the documents being
far apart. On the contrary, the presumption that
official duties were regularly performed must
be upheld.
Authority of Director of Lands to
investigate conflicts over public Lands.
The authority of the Director of Lands to
investigate conflicts over public lands is
derived from Section 91 of the Public Land
Act, reading:
". . . It shall be the duty of the
Director of Lands, from time
to time and whenever he may
deem it advisable to make the
necessary investigations for
the purpose of ascertaining

whether the material facts set

out in the application are true,
or whether they continue to
exist and are maintained and
preserved in good faith, and
for the purposes of such
investigation, the Director of
Lands is hereby empowered
to
issue subpoenas and subpoen
as duces tecumand, if
necessary,
to
obtain
compulsory process from the
courts. In every investigation
made in accordance with this
section, the existence of bad
faith, fraud, concealment, or
fraudulent
and
illegal
modification of essential facts
shall be presumed if the
grantee or possessor of the
land shall refuse or fail to
obey a subpoena or subpoena
duces tecum lawfully issued
by the Director of Lands or
his authorized delegates or
agents, or shall refuse or fail
to give direct and specific
answers
to
pertinent
questions, and on the basis of
such presumption, an order of
cancellation
may
issue
without further proceedings."
In fact, it is not merely his right but his
specific duty to conduct investigations of
alleged fraud in securing Free Patents and the
corresponding titles thereto.

"In the light of the facts

disclosed in the foregoing
stipulation, We reiterate
Cebede vs. Director of Lands,
G.R. No. L-12777, May 22,
1961, 2 SCRA 25, wherein
We held that it is not only the
right but the duty of the
Director of Lands to conduct
the investigation of any
alleged fraud in securing a
free
patent
and
the
corresponding title to a public
land and to file the
corresponding court action
for the reversion of the same
to the State, if the facts
disclosed in the course of
such investigation should so
warrant.
Consequently,
prohibition cannot be issued
to
enjoin
such
an
investigation despite the
existence of a Torrens title"
(cited in Pinero, Jr. vs.
Director of Lands, L-36507,
June 14, 1974, 57 SCRA
386).
Indefeasibility and imprescriptibility of
title
It is true that under Section 122 of the Land
Registration Act 5 a title issued on the basis of
a Free Patent is as indefeasible as one
judicially secured. That indefeasibility,
however, is not a bar to an investigation by the
Director of Lands as to how such title had
been acquired, if the purpose of such
investigation is to determine whether or not

fraud had been committed in securing such

title in order that the appropriate action for
reversion may be filed by the Government.
The rationale therefor has been explained,
thus:
"It is true that under Section
122 of the Land Registration
Act, a Torrens title issued on
the basis of a free patent or a
homestead patent is as
indefeasible as one judicially
secured. And in repeated
previous decisions of this
Court that indefeasibility has
been emphasized by Our
holding that not even the
Government can file an
action for annulment, but at
the same time, it has been
made clear that an action for
reversion may be instituted
by the Solicitor General, in
the name of the Republic of
the Philippines (Director vs.
De Luna, 110 Phil. 28;
Republic vs. The Heirs of C.
Carle, 105 Phil. 1228;
Panimdim vs. Director, 11
SCRA 628; and the cases
therein cited). It is to the
public interest that one who
succeeds in fraudulently
acquiring title to a public land
should not be allowed to
benefit therefrom, and the
State should, therefore, have
an ever existing authority,
thru its duly authorized

officers, to inquire into the

circumstances
surrounding
the issuance of any such title,
to the end that the Republic,
thru the Solicitor General or
any other officer who may be
authorized by law, may file
the corresponding action for
the reversion of the land
involved to the public
domain, subject thereafter to
disposal to other qualified
persons in accordance with
law. In other words, the
indefeasibility of a title over
land previously public is not
a bar to an investigation by
the Director of Lands as to
how such title has been
acquired, if the purpose of
such investigation is to
determine whether or not
fraud had been committed in
securing such title m order
that the appropriate action for
reversion may be filed by the
Government" (Pinero vs.
Director of Lands, supra).
And in so far as the timeliness of the action of
the Government is concerned, it is basic that
prescription does not run against the State
(Article 1108, Civil Code; Republic vs.
Rodriguez, L-18967, January 31, 1966, 16
SCRA 53). The case law has also been:
"When the government is the
real party in interest, and is

proceeding mainly to assert

its own rights and recover its
own property, there can be no
defense on the ground of
limitation
or
limitation"
(Government of the U.S. vs.
Judge of First Instance of
Pampanga, 49 Phil. 495, 500;
Republic vs. Grijaldo, L20240, December 31, 1965,
15 SCRA 681).
"Public land fraudulently
included in patents or
certificates of title may be
recovered or reverted to the
State in accordance with
Section 101 of the Public
Land Act. Prescription does
not lie against the State in
such cases for the Statute of
Limitations does not run
against the State. The right of
reversion or reconveyance to
the State is not barred by
prescription" (Republic vs.
Hon.
Animas,
L-37682,
March 29, 1974, 56 SCRA
499).
Barter and sale of the land in 1970
Section 118 of the Public Land Act 6 provides
that lands acquired under Free Patent shall not
be subject to encumbrance or alienation from
the date of the approval of the application and
for a term of five years from and after the date
of the issuance of the patent.
In the case at bar, the Free Patent was issued
on 14 April 1967. And yet, barely three (3)

years after its issuance, or in 1970, Catalina

Vda. de Felisilda had bartered a portion
thereof with Serranillo, as she herself had
declared in the investigation proceedings
covering the land in question (Exhibit "E-11"). The records likewise indicate that after
respondent Serranillo had acquired the
property he caused the same to be subdivided
into small lots and announced himself as
owner (Exhibits "K", "K-1" to "K-4"). In fact,
on 29 September 1970 in a Contract to Sell, he
sold Lot No. 18, Block 2, with an area of 192
sq. ms., a portion of Lot 2198, covered
by Original Certificate No. P-29004 (the
original title) in favor of one Nena B. Jamila
(Exhibits "K"; "K-2"). Another lot was sold on
9 November 1970 in favor of Pablo Poliquit
(Exhibits "K", "K-9" to "K-12"). In other
words, he was already exercising acts of
ownership.
The conclusion is inevitable, therefore, that
Felisilda's widow had disposed of the land
within the prohibitory period because as she
herself stated she needed money to finance her
medical expenses (Exhibit "E", p. 3). The
provision of the law which prohibits the sale
or encumbrance of the homestead within five
years after the grant of the patent is
mandatory, the purpose of the law being to
promote a definite public policy, which is to
preserve and keep in the family of the patentee
that portion of the public land which the State
has gratuitously given to them.
The Deeds of Sale executed by Felisilda's
widow only on 14 June 1972 in favor of
Serranillo (Exhibit "4") and Laiz (Exhibit "5")
cannot overcome the fact that as early as 1970
Serranillo was already exercising acts of

ownership over the land in question.

Indications are that the sales were actually
perfected within the prohibitory period but the
Deeds of Sale were made to appear as
executed only on 14 June 1972 or five (5)
years and two (2) months after the issuance of
the Patent on 14 April 1967. The 1972 Deeds
were
evidently
merely
confirmatory
documents designed to circumvent the
prohibition against alienation within a period
of five (5) years.
"The law prohibiting any
transfer or alienation of
homestead land within five
years from the issuance of the
patent does not distinguish
between
executory
and
consummated sales; and it
would hardly be in keeping
with the primordial aim of
this prohibition to preserve
and keep in the family of the
homesteader the piece of land
that the state had gratuitously
given to them. To hold valid a
homestead
sale
actually
perfected during the period of
prohibition but with the
execution and the delivery of
possession of the land sold to
the buyer deferred until after
the
expiration
of
the
prohibitory period, purposely
to circumvent the very law
that prohibits and declares
invalid each transaction to
protect the homesteader and
his family (Mansano vs.

Ocampo, L-14778, February

28, 1961, 1 SCRA 691, 697).
The Conclusiveness of the Decision of the
Director of Lands
The authority of the Director of Lands to
investigate circumstances leading to the
issuance of the patent after the same had been
issued is beyond question as heretofore
discussed. Ordinarily, too, his decision as to
questions of fact, when approved by the
Secretary of Agriculture & Natural Resources
is conclusive (Vda. de Calibo vs. Ballesteros,
L-17466, September 18, 1965, 15 SCRA 37;
Ramirez vs. CA, L-28591, October 31, 1969,
30 SCRA 297). However, it has also been held
that a Court may review a decision of the
Director of Lands in a direct proceeding
therefor, as in this case, and not collaterally
(Firmelo vs. Tutaan, L-35408, October 27,
1972, 53 SCRA 505). Thus, it is that we find
ourselves in disagreement with his finding that
the Patent had been fraudulently issued and
that there was falsification. In fact, the charge
of Falsification of Public Document was
rejected twice in succession by the Resolution
of the Provincial Fiscal of General Santos City
on 23 March 1972 (Exhibit "8" - Laiz), and by
the Court of First Instance of General Santos
in Crim. Case No. 732 on 8 July 1976 (Exhibit
"7" Laiz).
Reversion Allowed
In fine, while we affirm the finding of nonfalsification by both the Trial Court and the
Appellate Court, we are allowing reversion to
the State on the ground that the Disputed
Property was disposed of within the
prohibitory period, following the explicit

provisions of Section 124 of the Public Land

Act, reading:
"Sec. 124. Any acquisition,
conveyance,
alienation,
transfer, or other contract
made or executed in violation
of any of the provisions of
sections 118, 120, 121, 122
and 123 of this Act shall be
unlawful and null and void
from its execution and shall
produce
the
effect
of
annulling and cancelling the
grant, title, patent, or permit
originally issued, recognized
or confirmed, actually or
presumptively, and cause the
reversion of the property and
its improvement to the State."
WHEREFORE, the judgment under review
promulgated on 13 August 1987 by respondent
Appellate Court is hereby SET ASIDE and we
hereby order the cancellation of: (1) Free
Patent No. 326416 and Original Certificate of
Title No. P-29004, issued to Nicolas Felisilda;
(2) TCT No. T-12335, together with all the
307 derivative titles, namely TCT Nos. T28975 to T29281 all issued in favor of
respondent-appellee Serranillo; and (3) TCT
No. T-12416, issued in favor of Francisco
Laiz. The lands covered thereby are hereby
ordered reverted to the mass of the public
domain. No costs.
SO ORDERED.
||| (Republic v. Court of Appeals, G.R. No.
79582, [April 10, 1989], 253 PHIL 698-716)

SYLLABUS

the word "shall" is imperative, operating to

impose a duty which may be enforced.

1. APPEAL TO THE COURT OF FIRST

INSTANCE;
BASIS
OF
DECISION;
REQUEST
FOR
SUBMISSION
OF
MEMORANDUM; SECTION 45, R.A.. 296
AS AMENDED BY R.A.. NO. 6031.
Section 45, R.A.. 296, as amended by R.A..
No. 6031 specifically provides that Courts of
First Instance shall decide cases appealed to
them from the city courts and the municipal
courts on the basis of the evidence and records
transmitted from such courts, provided, that
the parties may submit memoranda and/or
brief with oral argument if so requested.

4. APPEAL; SECTION 45, R.A.. 296, AS

AMENDED BY R.A.. 6031; COURT OF
FIRST INSTANCE MUST DECIDE APPEAL
ON THE MERITS REGARDLESS OF NONSUBMISSION OF MEMORANDUM. The
law is clear that failure of a party-appellant to
submit a memorandum requested by the Court
of First Instance, leaves the Court with no
alternative but to decide the appealed case on
the basis of the evidence and records
transmitted from the city or municipal court,
since memoranda, briefs and oral arguments
are not essential requirements but may be
submitted and/or made only if so requested. A
contrary interpretation would be unjust and
dangerous as it may defeat the litigant's right
to appeal granted to him by law.

[G.R. No. L-35910. July 21, 1978.]

PURITA
BERSABAL, petitioner, vs. HONOR
ABLE
JUDGE
SERAFIN
SALVADOR, as Judge of the Court
of First Instance of Caloocan City,
Branch XIV, TAN THAT and ONG
PIN TEE, respondents.
SYNOPSIS
In a case appealed to it, respondent Court of
First Instance granted petitioner's ex parte
motion to submit her memorandum requested
by said Court within thirty (30) days from
receipt of notice of submission of the
transcript of stenographic notes taken during
the hearing of the case before the city court.
However, before petitioner could receive such
notice and before she could submit her
memorandum, respondent Judge dismissed her
appeal for failure to prosecute and denied her
subsequent motions for reconsideration.
Hence, this petition.
The Supreme Court ruled that the Court of
First Instance is not empowered by law to
dismiss an appeal on the mere failure of an
appellant to submit his memorandum, but
rather it is the Court's mandatory duty to
decide the case on the basis of available
evidence and records transmitted to it.
Petition granted and respondent Court ordered
to decide the case on the merits.

2. ID.; ID.; ID.; ID.; PARTIES MAY WAIVE

SUBMISSION OF MEMORANDA; COURT
MAY NOT DISMISS APPEAL FOR
FAILURE TO SUBMIT MEMORANDUM.
It is clear from the provision of Section 45,
R.A.. 296, as amended by R.A..6031 that the
submission of memoranda is optional on the
part of the parties. Hence, a party may choose
to waive such submission. As a logical
concomitant of the choice given to the parties,
the Court is not empowered by law to dismiss
the appeal on the mere failure of an appellant
to submit his memorandum, but rather it is the
Court's mandatory duty to decide the case on
the basis of the available evidence and records
transmitted to it.
3. STATUTORY CONSTRUCTION; WORD
"MAY" IS PERMISSIVE, "SHALL" IS
MANDATORY. As a general rule, the word
"may" when used in a statute is permissive
only and operates to confer discretion; while

5. ID.; RIGHT TO APPEAL MAY NOT BE

DENIED
EXCEPT
FOR
WEIGHTY
REASONS. The courts must proceed with
caution so that a party may not be deprived of
his right to appeal except for weighty reasons.
6. ID.; GRANT OF EXTENSION OF TIME
TO FILE MEMORANDUM; COURT CAN
ACT ON THE CASE ONLY AFTER
EXPIRATION OF THE PERIOD GRANTED.
Where the Court of First Instance grants a
party a 30-day period after notice of
submission of the transcript of the
stenographic notes by the city or municipal
court within which to submit his
memorandum, it is only after the expiration of
such period can the respondent Judge act on
the case by deciding it on the merits, not by
dismissing the appeal.

DECISION

MAKASIAR, J p:
On March 23, 1972, petitioner Purita Bersabal
seeks to annul the orders of respondent Judge
of August 4, 1971, October 30, 1971 and
March 15, 1972 and to compel said respondent
Judge to decide petitioner's perfected appeal
on the basis of the evidence and records of the
case submitted by the City Court of Caloocan
City plus the memorandum already submitted
by the petitioner and respondents.
Since only questions of law were raised
therein, the Court of Appeals, on October 13,
1972, issued a resolution certifying said case
to this Court pursuant to Section 17, paragraph
(4) of the Judiciary Act of 1948, as amended.
As found by the Court of Appeals, the facts of
this case are as follows:
"It appears that private
respondents Tan That and
Ong Pin Tee filed an
ejectment suit, docketed as
Civil Case No. 6926 in the
City Court of Caloocan City,
against the petitioner. A
decision was rendered by said
Court on November 25, 1970,
which decision was appealed
by the petitioner to the
respondent
Court
and
docketed therein as Civil
Case No. C-2036.

"During the pendency of the

appeal, the respondent court
issued on March 23, 1971 an
order which reads:
'Pursuant
to
the provisions of
Rep. Act No. 6031,
the Clerk of Court of
Caloocan City, is
hereby directed to
transmit to this Court
within fifteen (15)
days from receipt
hereof the transcripts
of stenographic notes
taken down during the
hearing of this case
before the City Court
of Caloocan City, and
likewise, counsels for
both parties are given
thirty (30) days from
receipt of this order
within which to file
their
respective
memoranda,
and
thereafter, this case
shall
be
deemed
submitted for decision
by this Court.'
which
order
was
apparently received by
petitioner on April 17,
1971.
"The
transcript
of
stenographic notes not having
yet been forwarded to the

respondent court, petitioner

filed on May 5, 1971 a
'MOTION EX-PARTE TO
SUBMIT MEMORANDUM
WITHIN 30 DAYS FROM
RECEIPT OF NOTICE OF
SUBMISSION OF THE
TRANSCRIPT
OF
STENOGRAPHIC NOTES
TAKEN DURING THE
HEARING OF THE CASE
BEFORE
THE
CITY
COURT OF CALOOCAN
CITY' which was granted by
respondent court on May 7,
1971. However, before the
petitioner could receive any
such
notice
from
the
respondent
court,
the
respondent Judge issued an
order on August 4, 1971
which says:
'For failure of
the
defendantappellant to prosecute
her appeal, the same
is hereby ordered
DISMISSED
with
costs against her.'
"Petitioner filed a motion for
reconsideration of the order
on September 28, 1971, citing
as a ground the granting of
his ex-parte motion to submit
memorandum within 30 days
from notice of the submission
of the stenographic notes
taken before the City Court.

Private respondents filed their

opposition to the motion on
September 30, 1971. In the
meantime, on October 20,
1971, petitioner filed her
memorandum dated October
18, 1971. On October 30,
1971 the respondent Court
denied the motion for
reconsideration. Then on
January 25, 1972, petitioner
filed a motion for leave to file
second
motion
for
reconsideration which was
likewise denied by the
respondent court on March
15,
1972.
Hence
this
petition."
The sole inquiry in the case at bar can be
stated thus: Whether, in the light of the
provisions of the second paragraph of Section
45 of Republic Act No. 296, as amended
by R.A. No. 6031, the mere failure of an
appellant to submit on time the memorandum
mentioned in the same paragraph would
empower the Court of First Instance to dismiss
the appeal on the ground of failure to
prosecute; or, whether it is mandatory upon
said Court to proceed to decide the appealed
case on the basis of the evidence and records
transmitted to it, the failure of the appellant to
submit
a
memorandum
on
time
notwithstanding. LibLex
The second paragraph of Section 45 of R.A.
No. 296, otherwise known as the
Philippine Judiciary Act of 1948, as amended
by R.A. No. 6031 provides, in part, as follows:

"Courts
of
First
Instance shall decide
such
appealed cases on the basis of
the evidence and records
transmitted from the city or
municipal courts: Provided,
That
the
parties may
submit memoranda
and/or
brief with oral argumentif so
requested. . . . ." (Emphasis
Ours).
The foregoing provision is clear and leaves no
room for doubt. It cannot be interpreted
otherwise than that the submission of
memoranda is optional on the part of the
parties. Being optional on the part of the
parties, the latter may so choose to waive
submission of the memoranda. And as a
logical concomitant of the choice given to the
parties, the Court cannot dismiss the appeal of
the party waiving the submission of said
memorandum. If the appellant so chooses not
to submit the memorandum, the Court of First
Instance is left with no alternative but to
decide the case on the basis of the evidence
and records transmitted from the city or
municipal courts. In other words, the Court is
not empowered by law to dismiss the appeal
on the mere failure of an appellant to submit
his memorandum, but rather it is the Court's
mandatory duty to decide the case on the basis
of the available evidence and records
transmitted to it.
As a general rule, the word "may" when used
in a statute is permissive only and operates to
confer discretion; while the word "shall" is
imperative, operating to impose a duty which
may be enforced (Dizon vs. Encarnacion, L-

18615, Dec. 24, 1963, 9 SCRA 714, 716-717).

The implication is that the Court is left with no
choice but to decide the appealed case either
on the basis of the evidence and records
transmitted to it, or on the basis of the latter
plus memoranda and/or brief with oral
argument duly submitted and/or made on
request.
Moreover, memoranda, briefs and oral
arguments are not essential requirements.
They may be submitted and/or made only if so
requested.
Finally, a contrary interpretation would be
unjust and dangerous as it may defeat the
litigant's right to appeal granted to him by law.
In the case of Republic vs. Rodriguez (L26056, May 29, 1969, 28 SCRA 378) this
Court underscored "the need of proceeding
with caution so that a party may not be
deprived of its right to appeal except for
weighty reasons." Courts should heed the rule
in Municipality of Tiwi, Albay vs. Cirujales
(L-37520, Dec. 26, 1973, 54 SCRA 390, 395),
thus:
"The
appellate
court's
summary dismissal of the
appeal even before receipt of
the records of the appealed
case as ordered by it in a
prior mandamus case must be
set aside as having been
issued precipitously and
without an opportunity to
consider
and
appreciate
unavoidable circumstances of

record not attributable

petitioners that caused
delay in the elevation of
records of the case
appeal."

to
the
the
on

In the instant case, no notice was received by

petitioner about the submission of the
transcript of the stenographic notes, so that his
30-day period to submit his memorandum
would commence to run. Only after the
expiration of such period can the respondent
Judge act on the case by deciding it on the
merits, not by dismissing the appeal of
petitioner.
WHEREFORE,
THE
CHALLENGED
ORDERS OF RESPONDENT JUDGE
DATED AUGUST 4, 1971, OCTOBER 30,
1971 AND MARCH 15, 1971 ARE HEREBY
SET ASIDE AS NULL AND VOID AND
THE RESPONDENT COURT IS HEREBY
DIRECTED TO DECIDE CIVIL CASE NO.
C-2036 ON THE MERITS.
NO COSTS.
||| (Bersabal v. Salvador, G.R. No. L-35910,
[July 21, 1978], 173 PHIL 379-385)