Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40428 December 17, 1975
FRANCISCO T. KOH, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL V. ROMILLO, JR., District Judge, Court of First Instance
of Ilocos Norte, Branch I, and JOSE P. COLOMA, respondents.
Koh Law Offices for petitioner.
Ferdinand A. Valentin for respondents.
ESGUERRA, J.:
Petition for certiorari with writ of preliminary injunction to review and reverse the decision of the Court
of Appeals (Eighth Division) in CA-G.R. No. SP-03322, entitled "Francisco T. Koh, petitioner vs. Jose P.
Coloma and Hon. Manuel V. Romillo, Jr., Judge of First Instance of Ilocos Norte, Branch I,
respondents". The appellate Court found "no grave abuse of discretion on the part of the respondent
judge in not dismissing the complaint on the ground of improper venue"; dismissed the petition for
injunction and lifted the writ of preliminary injunction it previously issued against the respondents.
The undisputed facts contained in petitioner's brief as adopted in respondents' brief are:
On February 21, 1974, private respondent (Jose Coloma) filed a Complaint for damages
against the herein petitioner in the Court of First Instance of Ilocos Norte, Branch I, the
same being docketed as Civil Case No. 5011-1 (Annex A of Amended Petition). On April
8, 1974, petitioner filed a Motion to Dismiss the said Complaint on the grounds that the
same fails to state a sufficient cause of action and that venue has been improperly
laid. (Annex B of Amended Petition) On May 8, 1974, petitioner filed a Manifestation
before the lower court apprising it that the copy of the Motion To Dismiss sent to
private respondent (counsel for private respondent did not specify any address in the
Complaint other than his alleged address in San Nicolas, Ilocos Norte) was returned
unserved by the Bureau of Post for the reason that he was unknown in the said
address. (San Nicolas, Ilocos Norte) Annexes "C" and "D" of Amended Petition.
On May 28, 1974, petitioner's counsel received a Notice from the lower court setting
the hearing of the Motion To Dismiss for June 4, 1974. In response to this notice,
petitioner on May 31, 1974 filed a Manifestation informing the lower court that he, was
submitting the motion without further arguments. Three (3) days before the scheduled
hearing of the Motion to Dismiss, specifically on June 11, 1974, counsel for petitioner
received a copy of private respondents' opposition to his Motion To Dismiss. Finding
that the private respondents pleading required comment, on June 18, 1974, petitioner
herein filed a Reply thereto (Annex G of Amended Petition).
On July 9, 1974, petitioner, thru counsel, received a copy of the Order of the lower
court denying the Motion To Dismiss (Annex A of Amended Petition. However from the
registry return card of the corresponding pleadings, it was apparent that the Order
denying our Motion To Dismiss dated June 25, 1974 of the lower court aforementioned
did not consider the facts and exhibits reflected in petitioner's Reply To Opposition To
Motion To Dismiss inasmuch as the same was received by the lower court on June 27,
1974 (2 days later) after the Order had been issued (the petitionees pleadings in the
said case were all filed with the court thru registered mail special delivery due to the
distance involved). For this reason, and within the period authorized by law, on July 11,
1974 petitioner filed a Motion For Reconsideration of the said Order reiterating therein
the matter stated in his Reply to Opposition which was not considered by the lower
court (Annex I of Amended Petition). This Motion for Reconsideration was opposed by
private respondent.

In an Order dated July 19, 1974, the lower court issued an Order denying the Motion for
Reconsideration filed by the petitioner.
From the Orders of the lower court dated June 25, 1974 and July 19, 1974, the
petitioner herein instituted certiorari proceedings with preliminary injunction before the
Court of Appeal the same being docketed as CA-G.R. No. L-03322. For failure of the
petitioner to attach thereto certified true copies of the Orders appealed from by reason
of their unavailability, the Court of Appeals dismissed the said petition. However, on
September 5, 1974, petitioner herein filed a Motion for Reconsideration of the
resolution of the Court of Appeals and on September 24, 1974, the said Motion was
favorably acted upon and the petition was given due course. On October 9, 1974, the
Court of Appeals issued a writ of preliminary injunction in the said case enjoining the
Court of First Instance of Ilocos Norte from further proceeding thereon.
After the issues on the peticion were joined by the filing of the ANSWER for the
respondents dated October 15, 1974, the case was set for oral arguments after which
the parties were required to submit, simultaneously, their respective memoranda. Only
petitioner herein filed his Memorandum in support of his petition. Private respondents
did not submit their memorandum.
In a resolution dated March 19, 1975, the Court of Appeals dismiss the petition for
certiorari and dissolved the writ of preliminary injunction.
Hence this petition for review and reversal of said resolution of March 19, 1975.
The only issue raised before Us is whether or not respondent Appellate Court erred and thus
committed grave abuse of discretion in dismissing the petition for certiorari filed by petitioner before
it; in holding that private respondent Jose P. Coloma is a resident of San Nicolas, Ilocos Norte, and
thereby holding that venue of the action before the Court of First Instance of Ilocos Norte was proper,
and in finding that the complaint of private respondent Coloma in the trial court recites a sufficient
cause of action.
Respondent Appellate Court predicted its decision on the finding that despite the petitioner's receipt of
a copy of the opposition to the petitioner's motion to dismiss filed by private respondent Coloma in the
trial court, petitioner failed to appear during the healing of his notion to dismiss the complaint on June
14, 1974; that "the parties were given the opportunity to adduce proofs and advance arguments to
support their respective sides and on the basis of whatever were adduced during the hearing, it
rendered a ruling in the exercise of its jurisdiction; "that" the lower court in its ruling cited the evidence
it relied upon and doctrines which supported and justified its findings and conclusions;" that
"considering that there is no showing of whimsical and capricious exercise of discretion, it could be
said that if ever there was an error committed by the respondent judge, it was an error of judgment in
the exercise of his discretion which is correctable by appeal;" and that it concurred with the lower
court's order denying the motion to dismiss which is anchored on the argument that the question of
residence of a person is one of intent. In the instant case, the trial Court concluded that San Nicolas,
Ilocos Norte, is the residencia of plaintiff as contemplated in paragraph (b) Section 2 of Rule 4.
Under ordinary circumstances the foregoing reasoning and findings of the trial court and the
respondent Appellate Court could be considered highly tenable and justifiably defensible, but We
simply cannot ignore petitioner's allegation in his motion to dismiss filed in the trial court that "this
clearly is a nuisance action brought before the Honorable Court to require the defendant (petitioner) to
travel and appear in Laoag, Ilocos Norte" as well as the background of the present case and compels
Us to delve deeper into the possible motives of private respondent in choosing as situs for his claim for
damages against petitioner the rather relatively far Court of First Instance of Ilocos Norte.
It is clear that Civil Case No. 5011 (for Damages) (Annex "A" to this Petition) filed by private
respondent Coloma in the Court of First Instance of Ilocos Norte, wherein Coloma is asking for damages
to the tune of P173,000.00 from petitioner for alleged "malicious, baseless, and unfounded criminal
complaint" filed by petitioner against Coloma, arose from the following alleged incidents, to wit:
That sometime on May 21, 1970, the defendant (petitioner) Francisco T. Koh filed
before the Municipal Court of Mandaluyong, Rizal, a complaint of Forcible Entry and
Detainer against the plaintiff (private respondent Coloma) for the possession of a
house and lot located at 480, Barangka Drive, Mandaluyong, Rizal, on which plaintiff
(Coloma) and his family were all residing,

That to avert the ejectment of plaintiff (Coloma) and his family from the aforecited
house, plaintiff (Coloma) and defendant (petitioner) entered into a compromise
settlement in court whereby plaintiff (Coloma) will pay to defendant (petitioner) the
total amount of P3,125.00,
That to insure the payment of the aforecited obligation plaintiff (Coloma) issued to
defendant (petitioner) a Manila Banking Corporation check No. 17010812 post-dated
February 27, 1971;
That in post-dating the aforecited check, plaintiff (Coloma) explicitly explained to
defendant (petitioner) that there is not sufficient funds at the time in the Bank to cover
the amount the necessity to post- date it with the expectation that Plaintiff (Coloma)
will deposit the necessary amount on or before the due date;
That for certain beyond the control of plaintiff (Coloma), he failed to deposit the
required amount on the date due, so that defendant (petitioner) Francisco T. Koh
forcibly the plaintiff and his family from their aforecited residence the following day,
February 28, 1971;
That defendant (petitioner), still not contented in having successfully evicted plaintiff
(Coloma) mo his family from their residence, defendant (petitioner) filed a criminal
complaint against the plaintiff (Coloma) before the Fiscal's Office at Pasig, Rizal, over
the Manila Banking Corporation check in question, which complaint was later filed
before the Court of First Instance of Rizal;
That defendant personally applied and actively participated in the criminal case as a
private prosecutor in collaboration with the prosecuting fiscal;
That the Court of First Instance of Rizal, upon motion of plaintiff (Coloma) dismissed
said criminal complaint in its order dated Sept. 26, 1972.
Private respondent Coloma convinced the trial court, although he admitted that he is presently residing
at No. 57 K-6th Street, Kamias, Quezon City, that he could be considered a legal resident domiciled at
San Nicolas, Ilocos Norte, because he was born and he grew up there; that his parents and his brothers
and sisters still live there; that their ancestral home and lands are situated there; that he studied in
Ilocos Norte up to his graduation in the Ilocos Norte High School; that if ever he came to Manila, it was
for the purpose of pursuing a college carrer; that he goes home time and again to oversee their
properties' harvests as he is the oldest; that if he is staying in Quezon City now, it is because his wife is
a government employee as staff nurse in the Philippine General Hospital; and after her retirement, he
and his family intends to return to his hometown of San Nicolas, Ilocos Norte, and establish his
permanent home there.
On the other hand, petitioner contends that on May 8, 1974, he filed a Manifestation before the lower
court apprising it that the copy of the motion to dismiss was sent to private respondent Coloma
(counsel for Coloma did not specify any address in the complaint) in his alleged address of San Nicolas,
Ilocos Norte, but the same was returned unserved by the Bureau of Posts for the reason that he
(Coloma) was unknown in the said address of San Nicolas, Ilocos Norte (Annex "C" and "D" of Amended
Petition); that in pleadings under oath filed in several judicial proceedings involving petitioner and
private respondent, the latter asserted his actual and present residence as either 486 Barangka Drive,
Mandaluyong, Rizal or No. 57, K-6th Kamias, Quezon City, Rizal, to wit:
1. Jose P. Coloma vs. Francisco T. Koh, Administrative Case No. 1060, Supreme Court;
2. Jose P. Coloma vs. Francisco T. Koh, Civil Case No. 14067, C.F.I. Rizal, Branch XI;
3. Jose P. Coloma, et al. vs. Francisco T. Koh, Civil Case No. 15450, C.F.I. Rizal, Branch
VI;
4. Jose P. Coloma, et al. vs. Hon. Cesar C. Cruz, et al., C.F.I. Rizal, Civil Case No. 14687;
5. Jose P. Coloma, et al., vs. Hon. Presiding Justice Salvador V. Esguerra, et al., Supreme
Court, G.R. No. L-35945;

6. Jose P. Coloma vs. Hon. Cesar C. Cruz, et al., C.F.I. Rizal, Civil Case No. 14140;
7. Jose P. Coloma, et al. vs Hon. V.M. Ruiz, et al., C.A.-G.R. No. SP-00329;
8. Francisco T. Koh vs. Hon. Guardson Lood, et al., C.A.-G.R. No.
00785-R;
9. Jose P. Coloma vs. Hon. Juan Enriquez, et al., G.R. No. L-36425;
that both private respondent Coloma and his wife Crisanta A. Coloma are registered voters in the
Greater Manila Area, it appearing in Jose P. Coloma's Voter's I.D. No. A- 4941010 and Mrs. Coloma's
Voter's I.D. No. A-4941009 that they are residents of No. 486 Barangka Drive, Mandaluyong, Rizal; that
the complaint filed against petitioner for damages in the C. F. 1. of Ilocos Norte, was prepared in
Manila, signed by a Manila lawyer, verified in Manila by private respondent who showed his Residence
Certificate issued in Manila (R.C.A-324643, issued on March 8, 1973, in Manila); that the filing of the
complaint for damages before the C.F.I. of Ilocos Norte was "purely for the purpose of harrassment and
that venue of the action was improperly laid".
It is fundamental in the law governing venue of actions (Rule 4 of the Rules of Court) that the situs for
bringing real and personal civil actions are fixed by the rules to attain the greatest convenience
possible to the parties litigants by taking into consideration the maximum accessibility to them of the
courts of justice. It is likewise undeniable that the term domicile is not exactly synonymous in legal
contemplation with the term residence, for it is a established principle in Conflict of Laws
that domicile refers to the relatively more permanent abode of a person while residence applies to a
temporary stay of a person in a given place. In fact this distinction is very well emphasized in those
cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases
involving stateless persons.
This Court held in the case of Uytengsu vs. Republic, 50 O.G. 4781, October, 1954, reversing its
previous stand in Larena v. Ferrer, 61 Phil. 36 and Nuval v. Guray 52 Phil. 645, that
There is a difference between domicile and residence. Residence is used to indicate a
place of abode, whether permanent or temporary; domicile, denotes a fixed
permanent residence to which when absent, one has the in ten petition of returning. A
man may have a residence in one place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for one and the same purpose at any
time, but he may have numerous places of residence. His place of residence generally
is his place of domicile, but is not by any means, necessarily so since no length of
residence without intention of remaining will constitute domicile. (Emphasis supplied)
We note that the law on venue in Courts of First Instance (Section 2, of Rule 4, Rules of Court) in
referring to the parties utilizes the words "resides or may be found," and not "is domiciled," thus:
Sec. 2(b) Personal actions All other actions may be commenced and tried where the
defendant or any of the defendants resides or may be found, or where the plaintiff or
any of the plaintiffs resides, at the election of the plaintiff. (Emphasis supplied)
Applying the foregoing observation to the present case, We are fully convinced that private respondent
Coloma's protestations of domicile in San Nicolas, Ilocos, Norte, based on his manifested intention to
return there after the retirement of his wife from government service to justify his bringing of an action
for damages against petitioner in the C.F.I. of Ilocos Norte, is entirely of no moment since what is of
paramount importance is where he actually resided or where he may be found at the time he brought
the action, to comply substantially with the requirements of Sec. 2 (b) of Rule 4, Rules of Court, on
venue of personal actions. The admission of private respondent Coloma that when he brought the
action for damages against petitioner in the C.F.I. of Ilocos Norte, he was "residing at No. 57 K-6th
Street, Kamias, Quezon City" is to Our mind absolutely fatal to all his contentions of good faith in
bringing that action in a distant place and at the same time quite revealing of his motive for doing so,
when We take into consideration the basis of the action for damages against petitioner which is the
criminal prosecution for estafa against private respondent Coloma arising from a bank check he used
to pay petitioner and was dishonored for lack of funds; respondent Coloma's proven acts in having the
civil complaint for damages prepared in Manila by a Manila lawyer, verified in Manila and filed in Ilocos
Norte C.F.I. and the numerous cases between petitioner and respondent Coloma in this Court, the Court
of Appeals and the Rizal Courts of First Instance wherein respondent Coloma swore under oath that he
is a resident of 486 Barangka Drive, Mandaluyong, Rizal and No. 57, K-6th Kamuning, Quezon City.

An examination of the cause of action contained in the civil complaint for damages filed by respondent
Coloma against petitioner in Civil Case No. 5011 of the Court of First Instance of Ilocos Norte raises
lingering doubts in Our mind as to the existence of a valid and justified cause of action, for it prays for
P173,000.00 worth of alleged damages (actual, moral exemplary and attorney's fees) based on an
alleged "malicious, baseless, and unfounded complaint" filed by petitioner against respondent Coloma,
when it could be seen from the civil complaint itself that the basis of the action for damages is the
criminal prosecution of respondent Coloma for the crime of estafa in the C.F.I. of Rizal because of the
complaint of petitioner arising from the post-dated check admittedly issued by respondent Coloma
which was dishonored for lack of funds. It can readily be seen from the record that it was the Fiscal of
Rizal who filed the criminal complaint for estafa against respondent Coloma after preliminary
investigation when the fiscal was convinced of the existence of a prima facie case against Coloma.
While it is true that petitioner was the offended party because the dishonored check was issued in his
favor and that he acted as private prosecutor when the case was filed in the C.F.I. of Rizal because
there was no separate civil action filed against Coloma arising from the same cause of alleged estafa,
it certainly cannot be said that as offended party in the criminal case and by initiating the same
criminal case against respondent Coloma he (petitioner) was the one who filed the "malicious, baseless
and unfounded complaint" against private respondent Coloma. To establish the filing of the criminal
case against Coloma by the Fiscal of Rizal as "malicious" is highly problematical because the Fiscal of
Rizal conducted a preliminary investigation on the same and if he in the exercise of his quasi-judicial
duty believed there was a prima facie case against respondent Coloma that made him file the case, his
act cannot be called "malicious". We note here that the petitioner was not the one who filed the
criminal case against the respondent Coloma, the former being merely the offended party. The criminal
complaint against respondent Coloma could hardly be termed "baseless and unfounded" because he
himself admitted that he issued a post-dated check that was dishonored. If the criminal complaint
against him was dismiss by the C.F.I. of Rizal upon his own motion and perchance by some reason of
technicality or by reason of reasonable doubt, respondent Coloma is by no means absolved from the
civil liability of refunding the amount written in the dishonored check to the petitioner. The logical
conclusion that could be derived from all the foregoing is that the criminal complaint filed against
respondent Coloma for Estafa by the Fiscal of Rizal is by no means "malicious", "baseless", and
"unfounded" and, therefore, the action for damages is without any basis and that respondent Coloma's
civil complaint for damages filed in the C.F.I. of Ilocos Norte was without sufficient cause of action.
We observe in the examination of the record of this case, that private respondent Coloma can go to the
extent of resorting to other means while this case pending in the respondent Court of Appeals to find a
solution to another aspect of the raging controversy between petitioner and private respondent. As a
result of respondent Coloma's filing of a complaint for damages (Civil Case No. 5011) against petitioner
in the C.F.I. of Ilocos Norte, wherein respondent Coloma alleged that "he is a resident of the
Municipality of San Nicolas, Province of Ilocos Norte," Petitioner filed in the Fiscal's Office of Manila a
case of perjury against respondent Coloma and the Investigating Fiscal in his resolution believed in the
existence of a prima facie case against him. Respondent Coloma was able to get a directive from the
Secretary of Justice, dated Sept. 3, 1974, reversing the findings of the Investigating Fiscal and
instructing the City Fiscal of Manila to have the case "dismissed, immediately upon receipt hereof". At
any rate, We are convinced that the misunderstanding between petitioner and private respondent
Coloma has gone to such an extent that it would not be surprising for respondent Coloma to be
motivated by vengeance when he filed his action for damages against the petitioner in the C.F.I. of
Ilocos Norte in order to get even with and impose all kinds of inconveniences on the petitioner.
Otherwise,' it would have been easier and very much more convenient for both parties if the civil
action for damages against petitioner had been filed either in the C.F.I. of Quezon City or Pasig, Rizal,
because both petitioner and private respondent are admittedly residing within the greater Manila area.
WHEREFORE, the decision of the respondent Appellate Court is hereby reversed; the Orders dated June
25, 1974, and July 19, 1974, in Civil Case No. 5011-1 of the Court of the First Instance of Ilocos Norte
are set aside; the complaint in the aforementioned case is hereby dismissed for improper venue and
lack of sufficient cause of action, and the respondent judge of the Court of First Instance of Ilocos Norte
or his successor in office is restrained from further proceeding with the hearing of said case.
With costs against private respondent Coloma.
SO ORDERED.
Makasiar, Muoz Palma and Martin, JJ., concur.
Teehankee, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-16439

July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the same.
The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of
Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint
upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against
defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the
costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a
majority vote of three justices as against two, who rendered a separate dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before
they were legally married. Desiring to conceal her pregnancy from her parent, and acting on
the advice of her aunt, she had herself aborted by the defendant. After her marriage with the
plaintiff, she again became pregnant. As she was then employed in the Commission on
Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she again became pregnant. On
February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida,
she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where
the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus,

in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in
the province of Cagayan, campaigning for his election to the provincial board; he did not know
of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06
upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we
believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a
person, does not cover the case of an unborn foetus that is not endowed with personality. Under the
system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en
consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights and obligations.
Since an action for pecuniary damages on account of personal injury or death pertains primarily to the
one injured, it is easy to see that if no action for such damages could be instituted on behalf of the
unborn child on account of the injuries it received, no such right of action could derivatively accrue to
its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same
was extinguished by its pre-natal death, since no transmission to anyone can take place from on that
lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer
to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40
of the Civil Code, because that same article expressly limits such provisional personality by imposing
the condition that the child should be subsequently born alive: "provided it be born later with the
condition specified in the following article". In the present case, there is no dispute that the child was
dead when separated from its mother's womb.
The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can
not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs.
Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any damages at all. But such damages
must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of
the deceased, his right to life and physical integrity. Because the parents can not expect either help,
support or services from an unborn child, they would normally be limited to moral damages for the
illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of
distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ.
Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis
for an award of moral damages, evidently because the appellee's indifference to the previous
abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned
with the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the
second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the
suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the
causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the
third abortion, the appellee does not seem to have taken interest in the administrative and criminal
cases against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees,
an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have aptly remarked that:
It seems to us that the normal reaction of a husband who righteously feels outraged by the
abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it that the
medical profession was purged of an unworthy member rather than turn his wife's indiscretion
to personal profit, and with that idea in mind to press either the administrative or the criminal
cases he had filed, or both, instead of abandoning them in favor of a civil action for damages
of which not only he, but also his wife, would be the beneficiaries.
It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without
medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her husband does not excuse it. But the

immorality or illegality of the act does not justify an award of damage that, under the circumstances
on record, have no factual or legal basis.
The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.
Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio Geluz
as the facts may warrant.
Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

[1954V287E] In the matter of the petition of WILFRED UYTENGSU to be admitted a citizen of the
Philippine. WILFRED UYTENGSU, petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositorappellant.1954 Sep 29En BancG.R. No. L-6379D E C I S I O N

CONCEPCION, J.:
This is an appeal taken by the Solicitor General from a decision of the Court of First Instance of Cebu,
granting the application of Wilfred Uytengsu, for naturalization as citizen of the Philippines.
The main facts are not disputed. Petitioner-appellee was born, of Chinese parents, in Dumaguete,
Negros Oriental on October 6, 1927. He began his primary education at the Saint Theresa's College in
said municipality. Subsequently, he attended the Little Flower of Jesus Academy, then the San Carlos
College and, still later the Siliman University - all in the same locality - where he completed the
secondary course. Early in 1946, he studied, for one semester, in the Mapua Institute of Technology, in
Manila. Soon after, he went to the United States, where, from 1947 to 1950, he was enrolled in the
Leland Stanford Junior University, in California, and was graduated, in 1950, with the degree of
Bachelor of Science. In April of the same year he returned to the Philippines for four (4) months
vacation. Then, to be exact, on July 15, 1950, his present application for naturalization was filed.
Forthwith, he returned to the United States and took a postgraduate course, in chemical engineering,
in another educational institution, in Fort Wayne, Indiana. He finished this course in July 1951; but did
not return to the Philippines until October 13, 1951. Hence, the hearing of the case, originally
scheduled to take place on July 12, 1951, had to be postponed on motion of counsel for the petitioner.
The only question for the determination in this appeal is whether or not the application for
naturalization may be granted, notwithstanding the fact that petitioner left the Philippines immediately
after the filing of his petition and did not return until several months after the first date set for the
hearing thereof. The Court of First Instance of Cebu decided this question in the affirmative and
accordingly rendered judgment for the petitioner. The Solicitor General, who maintains the negative,
has appealed from said judgment.
Section 7 of Commonwealth Act No. 473 reads as follows:

"Any person desiring to acquire Philippine citizenship shall file with the competent court, a petition in
triplicate, accompanied by two photographs of the petitioner, setting forth his name and surname, his
present and former place of residence; his occupation; the place and date of his birth; whether single
or married and if the father of children, the name, age, birthplace and residence of the wife and of
each of the children; the approximate date of his arrival in the Philippines, the name of the port of
debarkation, and if he remembers it, the name of the ship on which he came; a declaration that he has
the qualifications required by this Act, specifying the same, and that he is not disqualified for
naturalization under the provisions of this Act; that he has complied with the requirements of section
five of this Act, and that he will reside continuously in the Philippines from the date of the filing of the
petition up to the time of his admission to Philippine citizenship . . ." ( mphasis supplied.)
In conformity with this provision, petitioner stated in paragraph 13 of his application:

". . . I will reside continuously in the Philippines from the date of the filing of my petition up to the time
of my admission to Philippine citizenship." (Record on Appeal, page 3.)
Petitioner contends, and the lower court held, that the word "residence", as used in the aforesaid
provision of the Naturalization Law, is synonymous with domicile, which, once acquired, is not lost by
physical absence, until another domicile is obtained, and that, from 1946 to 1951, he continued to be
domiciled in, and hence a resident of the Philippines, his purpose in staying in the United States, at
that time, being, merely to study therein.
It should be noted that to become a citizen of the Philippines by naturalization, one must reside therein
for not less than 10 years, except in some special cases, in which 5 years of residence is sufficient
(sections 2 and 3, Commonwealth Act No. 473). Pursuant to the provision above quoted, he must, also,
file an application stating therein, among other things, that he "has the qualifications required" by law.
Inasmuch as these qualifications include the residence requirement already referred to, it follows that
the applicant must prove that he is a resident of the Philippines at the time, not only of the filing of the
application, but, also, of its hearing. If the residence thus required is the actual or constructive
permanent home, otherwise known as legal residence or domicile, then the applicant must be
domiciled in the Philippines on both dates. Consequently, when section 7 of Commonwealth Act No.
473 imposes upon the applicant the duty to state in his sworn application "that he will reside
continuously in the Philippines" in the intervening period, it can not refer merely to the need of an
uninterrupted domicile or legal residence, irrespective of actual residence, for said legal residence or
domicile is obligatory under the law, even in the absence of the requirement contained in said clause,
and, it is well settled that, whenever possible, a legal provision must not be so construed as to be a
useless surplusage, and, accordingly, meaningless, in the sense of adding nothing to the law or having
no effect whatsoever thereon. This consequences may be avoided only by construing the clause in
question as demanding actual residence in the Philippines from the filing of the petition for
naturalization to its determination by the court.

Indeed, although the words "residence" and "domicile" are often used interchangeably, each has, in
strict legal parlance, a meaning distinct and different from that of the other.

xxx

xxx

xxx

". . . There is a decided preponderance of authority to the effect that residence and domicile are not
synonymous in connection with citizenship, jurisdiction, limitations, school privileges, probate and
succession.

". . . the greater or less degree of permanency contemplated or intended furnishes a clue to the
sometimes shadowy distinction between residence and domicile. To be a resident one must be

physically present in that place of a longer or shorter period of time. 'The essential distinction between
residence and domicile is this: the first involves the intent to leave when the purpose for which he has
taken up his abode ceases; the other has no such intent, the abiding is animo manendi. One may seek
a place for purposes of pleasure, of business, or of health. If his intent be to remain it becomes his
domicile; if his intent is to leave as soon as his purpose is accomplished, it is his residence. Perhaps the
most satisfactory definition is that one is a resident of a place from which his departure is indefinite as
to time, definite as to purpose; and for this purpose he has made the place his temporary home.

"For many legal purposes there is a clear distinction between 'residence' and 'domicile.' A person may
hold an office or may have business or employment or other affair which requires him to reside at a
particular place. His intention is to remain there while the office or business or employment or other
concern continues; but he has no purpose to remain beyond the time the interest exists which
determines his place of abode. Domicile is characterized by the animus manendi. . . .

"Residence and domicile are not to be held synonymous. Residence is an act. Domicile is an act
coupled with an intent. A man may have a residence in one state or country and his domicile in
another, and he may be a nonresident of the state of his domicile in the sense that his place of actual
residence is not there. Hence the great weight of authorities - rightly so, as we think - that a debtor,
although his legal domicile is in the state, may reside or remain out of it for so long a time and under
such circumstances as to acquire so to speak, an actual nonresidence within the meaning of the
attachment statute."

"Domicile is a much broader term than residence. A man may have his domicile in one state and
actually reside in another, or in a foreign country. If he has once had a residence in a particular place
and removed to another, but with the intention of returning after a certain time, however long that
may be, his domicile is at the former residence and his residence at the place of his temporary
habitation. Residence and habitation are generally regarded as synonymous. A resident and an
inhabitant mean the same thing. A person resident is defined to be one 'dwelling and having his abode
in any place,' 'an inhabitant,' 'one that resides in a place.'

The question of domicile is not involved in determining whether a person is a resident of a state or
country. The compatibility of domicile in one state with actual residence in another has been asserted
and acted upon in the law of attachment by the Courts of New York, New Jersey, Maryland, North
Carolina, Mississippi and Wisconsin.

"Residence indicates permanency of occupation, distinct from lodging or boarding, or temporary

occupation. It does not include as much as domicile, which requires intention combined with
residence.' . . . 'one may seek a place for purposes of pleasure, of business, or of health. If his intent be
to remain, it becomes his domicile; if his intent be to leave as soon as his purpose is accomplished, it is
his residence.'

"The derivation of the two words 'residence' and 'domicile' fairly illustrates the distinction in their
meaning. A home (domus) is something more than a temporary place of remaining (residendi)
however long such stay may continue.

'While, generally speaking, domicile and residence mean one and the same thing, residence combined
with intention to remain, constitutes domicile while an established abode, fixed permanently for a time

[!] for business or other purposes, constitutes a residence, though there may be an intent, existing all
the while, to return to the true domicile.'

"There is a difference between domicile and residence. 'Residence' is used to indicate the place of
abode, whether permanent or temporary' 'domicile' denotes a fixed permanent residence to which,
when absent, one has the intention of returning. A man may have a residence in one place and a
domicile in another.' 'Residence is not domicile, but domicile is residence coupled with intention to
remain for an unlimited time. A man can have but one domicile for one and the same purpose at any
time, but he may have numerous places of residence. His place of residence generally is his place of
domicile, but is not by any means necessarily so, since no length of residence without intention of
remaining will constitute domicile." (Kennan on Residence and Domicile, pp. 26, 31-35)

Such distinction was, in effect, applied by this Court in the case of Domingo Dy, alias William Dy Chinco
vs. Republic of the Philippines (92 Phil., 278). The applicant in that case was born in Naga, Camarines
Sur, on May 19, 1915. "At the age of seven or eight, or in the year 1923, he went to China, with his
mother to study, and while he used to go back and forth from China to the Philippines during school
vacations, he did not come back to live permanently here until the year 1937." He applied for
naturalization in 1949. The question arose whether, having been domiciled in the Philippines for over
30 years, he could be naturalized as a citizen of the Philippines, without a previous declaration of
intention, in view of section 6 of Commonwealth Act No. 473 (as amended by Commonwealth Act No.
535), exempting from such requirement "those who have resided in the Philippines continuously for a
period of thirty years or more, before filing their application." This Court decided the question in the
negative, upon the ground that "actual and substantial residence within the Philippines, not legal
residence", or "domicile," along, is essential to the enjoyment of the benefits of said exemption.

If said actual and substantial residence - not merely legal residence - is necessary to dispense with the
filing of a declaration of intention, it is even more necessary during the period intervening from the
filing of the petition for naturalization to the date of the hearing thereof. In this connection, it should be
remembered that, upon the filing of said petition, the clerk of court is ordained by law to publish it with
a notice of the date of the hearing, which, pursuant to section 7 of Act No. 2927, shall not be less than
60 days from the date of the last publication. This period was extended to two (2) months, by section 7
of Commonwealth Act No. 473, and then to six (6) months, by Republic Act No. 530. The purpose of
said period, particularly the extensions thereof - like the requirement of making a declaration of
intention at least one (1) year prior to the filing of the application - is not difficult to determine. It is
nothing but to give the government sufficient time to check the truth of the statements made in said
declaration of intention, if any, and in the application for naturalization, especially the allegations
therein relative to the possession of the qualifications and none of the disqualifications provided by
law. Although data pertinent to said qualifications and disqualifications could generally to be obtained
from persons familiar with the applicant, it is be expected that the information thus secured would
consist, mainly, of conclusions and opinions of said individuals. Indeed, what else can they be expected
to say on whether the applicant has a good moral character; or whether he believes in the principles
underlying our Constitution; or whether his conduct has been proper and irreproachable; or whether he
is suffering from mental alienation or incurable contagious diseases, or has not mingled socially with
the Filipinos? Obviously, the Government would be in a better position to draw its own conclusions on
these matters if its officers could personally observe the behaviour of the applicant and confer with
him if necessary.

In the case at bar, the Government has not had any chance whatsoever to thus keep a watchful eye on
petitioner herein. Immediately after the filing of his application - and - notwithstanding the explicit
promise therein made him, under oath, to the effect that he would reside continuously in the
Philippines "from the date of the filing of his petition up to the time of his admission to Philippine
citizenship" - he returned to the United States, where he stayed, continuously, until October 13, 1951.
For this first time, on July 12, 1951, his counsel had to move for opportunity needed by the

Government to observe petitioner herein was enhanced by the fact that, having been born in the
Philippines, where he finished his primary and secondary education, petitioner his not have to file, and
did not file, a declaration of intention prior to the filing of his petition for naturalization. Thus, the
Government had no previous notice of his intention to apply for naturalization until the filing of his
petition and could not make the requisite investigation prior thereto.

Moreover, considering that petitioner had stayed in the United States, practically without interruption,
from early 1947 to late in 1951, or for almost five (5) years, over three years and a half of which
preceded the filing of the application, it may be said that he resided - as distinguished from domiciled in the United States at that time and for over a year subsequently thereto. In fact, under our laws,
residence for six (6) months suffices to entitle a person to exercise the right to suffrage in a given
municipality (section 98, Republic Act No. 180); residence for sentatives (sec. 7, Art. VI, of the
Constitution); and residence for two (2) years, to run for the Senate (sec. 4, Art. VI, of the Constitution).
In some states of the United States, a residence of several weeks or months is enough to establish a
domicile for purpose of divorce. Although in these cases the word "residence" has been construed,
generally, to mean "domicile" - that is to say, actual residence, coupled with the intention to stay
permanently, at least at the time of the acquisition of said domicile - it would seem apparent from the
foregoing that the length justifies the conclusion that he was residing abroad when his application for
naturalization was filed and for fifteen (15) months thereafter, and that this is precisely the situation
sought to be forestalled by the law in enjoining the applicant to "reside continuously in the Philippines
from the date of the filing of the petition up to the time of his admission to Philippine citizenship,"
unless this legal mandate - which did not exist under Act No. 2927, and was advisely inserted,
therefore, by section 7 of Commonwealth Act No. 473 - were to be regarded as pure verbiage, devoid,
not only, of any force or effect, but, also, of any intent or purpose, as it would, to our mind, turn out to
be, were we to adopt petitioner's pretense.

In short, we are of the opinion that petitioner herein has not complied with the requirements of section
7 of Commonwealth Act No. 473, and with the aforementioned promise made by him in his application,
and, accordingly, is not entitled, in the present proceedings, to a judgment in his favor. Wherefore, the
decision appealed from is hereby reversed, and the case dismissed, with costs against the petitioner,
but without prejudice to the filing of another application, if he so desires, in conformity with law. It is so
ordered.

Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo and Reyes, J.B.L., JJ., concur.

\---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---/

([1954V287E] In the matter of the petition of WILFRED UYTENGSU to be admitted a citizen of the
Philippine. WILFRED UYTENGSU, petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositorappellant., G.R. No. L-6379, 1954 Sep 29, En Banc)