azcuna updates

7/21/2019 Azcuna Updates

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AZCUNA

UPDATES

1) The Comelec en banc cannot now be declared to havecommitted grave abuse of discretion in disqualifying petitionercandidate for Representatative because (1) the Comelecdecision is already final, the petition here having been filedafter five days from notice, and (2) Comelec still has

jurisdiction over the case since petitioner had not yet assumed

office. HRET's jurisdiction sets in when the candidate hasbeen proclaimed, has taken oath and has assumed office.

(Regina Ongsiako Reyes v. Comelec, G.R. No. 207264, June25, 2013. (En Banc, Perez,J.)

(The proclamation of a winning candidate divests the

Comelec of its jurisdiction over matters pending before it at thetime of the proclamation. (Limkaichong v. Comelec, G.R. Nos.

178831-32, etc., April 1, 2009, 583 SCRA 1). HRET rules

count the 15-day period to file protests and quo warrantofromthe time of the proclamation, Rule 16 & 17. DissentingOpinionof Brion,J.).

Furthermore, Comelec committed grave abuse ofdiscretion in finding petitioner to have lost and abandoned herdomicile of origin when she became a naturalized Americancitizen. (Ibid.,Brion,J.)

2) Renunciation of US citizenship followed by repeated useof US passport shows lack of abandonment of US citizenship.

(Maquiling v. Comelec, G.R. No. 195649, July 2, 2013.(ResolutionEn Banc, C.J.).

3) Bigamy is commited where the first marriage stillexisted when the second marriage was contracted, even if the

first marriage is later declared void.

(Capili v. People, G.R. No. 183805, July 3, 2013. (3rd Div.,Peralta,J.)

4) Decisions of the Ombudsman are immediately

executory.

The rule of procedure in the Ombudsman office is thatwhere the respondent is absolved of the charge, or whererespondent is convicted and the penalty imposed is public

censure or reprimand or suspension of not more than onemonth or a fine equivalent to one month salary, the decision isfinal, executory and unappealable.

In all other cases, the decision may be appealed to theCourt of Appeals but the appeal shall not stop the decisionfrom being executory.

If the penalty is suspension or removal and therespondent wins such appeal, respondent shall be considered as

having been under preventive suspension and shall be paid the

salary and such other emoluments not received by reason ofthe suspension or removal.

(Office of the Ombudsman v. Ernesto M. Echavez, et al., G.R.No. 172206, July 3, 2013 (3rd Div., Peralta,J.)

5) The rule in redemption of properties is that it is not

sufficient that a person offering to redeem manifests a desire todo so. The statement of intention must be accompanied by an

actual and simultaneous tender of payment. This constitutesthe exercise of the right to repurchase. (See, Art. 1616, CivilCode).

Signifying their intention to avail of the incentive

scheme (liberalizing payments and terms) did not amount to anexercise of redemption precluding the bank from making the

public sale.

(Note by ASA: The liberalized incentive schemeprogram was to expire on December 31, 1988. The bank soldthe properties on November 4, 1988. Yet, petitioners' claimthat the sale was premature was rejected by the SC on the

ground that the evidence (a letter) did not show that the bankhad unequalifiedly represented to petitioners that it hadextended the redemption period to December 31, 1988. Theletter to petitioners had said both that the incentive scheme[open to all owners of foreclosed properties] would expire

December 31, 1988, and that their own redemption was up toApril 21, 1988. For me, the letter of the bank was

misleading.)

(Spouses Hojas v. Philippine Amanah Bank, G.R. No. 193453,June 5, 2013. (3rd Div., Mendoza,J.)

6) An unregistered deed of sale has an inferior probative

value to a title certificate.(Meralco v. Heirs of Spouses Deloy, G.R. No. 192893, June 5,

2013, (3rd Div., Mendoza,J.)

7) A broker has the right to the agreed commission even ifthe owner revoked his authority and directly negotiated withthe buyer whom the owner met thru the broker's efforts.

(Infante v. Cunanan, 93 Phil. 691, 695 [1953]).

As for the fact that the properties were eventually soldfor less than the original asking price, that was within theowner's discretion, decided unilaterally without consulting the

broker. Thus, the owner should be deemed to have waived itsown minimum price requirement.

(Oriental Petroleum & Minerals Corp. v. Tuscan Realty,Inc., G.R. No. 195481, July 10, 2013. (3rd Div., Abad,J.)

8) When is a person engaged in labor-only contracting?

What is its effect?

Any person who undertakes to supply workers to anemployer is engaged in labor-only contracting where such

person:

(1) Does not have substantial capital or investment in

the form of tools, equipment, machineries, work premises andother materials, and,


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(2) The workers recruited and placed by such person are

performing activities which are directly related to the principal[activity] or operations of the employer in which the workersare habitually employed.

Such act (labor-only contracting) is prohibited and theperson acting as contractor shall be considered merely as an

agent of the employer and shall be responsible to the workersin the same manner and extent as if the latter were directly

employed by him. (Sec. 8, DOLE Dept. Order No. 10, Seriesof 1997).

(First Phil. Industrial Corp. v. Raquel M. Calimbas, G.R. No.179256, July 10, 2013. (3rd Div., Peralta,J.)

9) Fair market value of land taken for agrarian reform isreckoned as of the time of the taking.

(Heirs of Spouses Tria v. Land Bank, G.R. No. 170245, July 1,2013. (3rd Div., Perez,J.)

10) The Rules of Court provide that a final and executoryjudgment may be executed by motion within 5 years from thedate of its entry or by action after the lapse of 5 years and

before prescription sets in. This Court, however, has allowedexceptions, when execution may be made by motion after 5

years, where the delay is caused or occasioned by actions ofthe judgment obligor and/or incurred for his benefit oradvantage. The rationale for the rule is to prevent parties fromsleeping on their rights. In the case of exception, the partymoving cannot be said to have slept on his rights.

(RCBC v. Serra, G.R. No. 203241, July 10, 2013. (2nd Div.,

Carpio,J.)

11) The rule is that a proper special procedings is requiredto declare heirship and the issue cannot be ventilated in a suitfor recovery of property. Exceptions:

(1) For practical reasons, when it appeared that no otherproperty was involved in the inheritance and the parties in thecivil case had voluntarily submitted the issue to the trial courtand already presented their evidence regarding the heirship andthe RTC consequently rendered judgment thereon, or

(2) When a special proceeding had been instituted buthad been finally closed and terminated, and, hence, cannot bere-opened.

(Heirs of Magdaleno Ypon v. Ponteras, G.R. No. 198680, July

8, 2013. (ResolutionEn banc, Perlas-Bernabe,J.)

12) Relaxation of procedural rules by way of exceptions to

finality and entry of judgments (the doctrine of immutability ofjudgments) are allowed by reversing judgments and recalling

their entries in the interest of substantial justice and wherespecial and compelling reasons exist for such actions. (Apo

Fruits Corp. v. Land Bank, G.R. No. 164195, Oct. 12, 2010,

632 SCRA 727, 760 citing Equitable Banking Corp. v. Sadac,G.R. No. 164772, June 8, 2006, 490 SCRA 380, 416-417).

Bases Conversion Development Authority v. Rosa ReyesCenando, G.R. No. 194242, June 19, 2013. (2nd Div., Perlas-Bernabe,J.)

1) Removal of chairs in the bottling plant of Coca-Cola

Bottlers Phils., Inc. not violative of labor laws.

1. Law requires chairs only for women workers. In thiscase, all operators were men.

2. Removal of chairs was done in good faith, to increase

efficiency and prevent operators from falling asleep on the job,and was compensated by reduced operating hours and increase

of the break periods.

3. Nature of the work called for moving constantlywhile working, so the chairs were not necessary.

4. Prolonged sitting at work poses health hazards, perscientific studies.

(Royal Plant Workers Union v. Coca-Cola Bottlers Phils., Inc.-Cebu Plant, G.R. No. 198783, April 15, 2013. (3rd Div.,Mendoza,J.)

2) The doctrine of indefeseability of Torrens title does notextend to transferees who take the certificate of title in badfaith.

In this case: petitioners-buyers acted in bad faith: (1)seller did not have possession of subject property; (2) duringthe sale, seller did not have the owner's duplicate copy of the

title; (3) there were existing permanent improvements on theland; (4) respondents were in actual possession of the land.

(Sps. Esmeraldo D. Vallido, et al. v. Sps. Elmer Pono, et al.,

G.R. No. 200173, April 15, 2013. (3rd Div., Mendoza,J.)

3) An indispensable party is a party-in-interest withoutwhom no final determination can be had of the action.

Non-joinder of an indispensable party is not a ground fordismissal of an action. The court should have directed

petitioner to implead the indispensable party. In case ofrefusal, then the court can dismiss the complaint for plaintiff'sfailure to comply with the order.

(Heirs of Faustino Mesina v. Heirs of Domingo Fian ,G.R. No. 201816, April 8, 2013. (3rd Div., Velasco, Jr.,J.)

4) An amicable settlement reached after a barangayconciliation, per the Revised Katarungang Pambarangay Law,

has the force and effect of a final judgment of the court,

Exception

When repudiated or a petition to nullify it is f iled before

the proper city of municipal court in 10 days from its date.

Enforcement


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The settlement may be enforced by execution by the

lupong tagapamayapa in 6 months from its date, or by action inthe appropriate city of municipal court beyond such period.

The Precept

The precept under Art. 2037, Civil Code, is that a

Compromise Agreement that is not contrary to law, publicorder, public policy, morals or good customs, is a valid

contract which is the law between the parties and has the effectof res judicataeven if not judicially approved.

The Precept Qualified

However, Art. 2041, Civil Code, (effective August 30,1950), grants for the first time the right of rescission to a party

of a Compromise Agreement in case the other party violates itsterms. The aggrieved party has the right to either enforce theCompromise Agreement or regard it as rescinded and insistupon his original demand.

Art. 2041, Civil Code, therefore, qualifies the broad

precept under Art. 2037 that [A] Compromise has upon theparties the effect and authority of res judicata.

Furthermore, in exercising the option of rescission, theaggrieved party may bring the suit contemplated or involved

in his original demand, as if no Compromise Agreement hadever been entered into, without need to bring an action for

rescission, because by the breach of the other party he mayregard the compromise as already rescinded. Citing,Valdez v.CA, G.R. No. 159411, March 18, 2005, 453 SCRA 843 .

(Rey Castegador Catedrilla v. Mario and Margie Lauron, G.R.

No. 179011, April 15, 2013. (3rd Div., Peralta,J.)

5) The Purpose ofAmparo

The Writ ofAmparoserves both preventive and curativeroles in addressing the problem of extrajudicial killings andenforced disappearances.

It is preventive in that it breaks the expectation ofimpunity in the commission of these offenses, and it is curativein that it facilitates the subsequent punishment of perpetrators

by inevitably leading to subsequent investigation and action.

In this case, the thrust of ensuring that the investigationsare conducted and the rights to life, liberty and security of the

petitioner, remains.

Substantial Evidence Suffices

The Writ ofAmparopartakes of a summary proceeding

that requires only substantial evidence to make the appropriateinterim and permanent reliefs available to the petitioner.

The Totality of the Evidence is the Standard

The totality of the evidence as a standard for the grant ofthe writ was correctly applied here.

As first laid down inRazon v. Tagitis, [G.R. No. 182498,December 3, 2009, 606 SCRA 598, 692], the fair and properrule is to consider all the pieces of evidence adduced in theirtotality, and to consider any evidence otherwise inadmissibleunder our usual rules to be admissible if it is consistent withthe admissible evidence adduced. In other words, we reduce

our rules to the most basic test of reasoni.e., to the relevanceof the evidence to the issue at hand and its consistency with all

other pieces of adduced evidence. Thus, even hearsayevidence can be admitted if it satisfies this basic minimum

test. [Emphasis supplied by Supreme Court tothe Tagitisquote].

Directive to Investigate Stands

The Supreme Court thus denied respondents-militaryofficers' motion for reconsideration of the decision of

November 15, 2011, and directed the Office of theOmbudsman and the DOJ to take appropriate action withrespect to any possible liability or liabilities, within theirrespective legal competence, that may have been incurred byrespondents-military officers, for the abduction and torture of

petitioner as narrated in petitioner's Sinumpaang

Salaysaywhich is a meticulous and straighforward account ofhis horrific ordeal with the military, detailing the manner inwhich he was captured and maltreated on account of hissuspected membership in the NPA.

(In the matter of the Petition for a Writ of Amparo, andHabeas Data, in favor of Noriel Rodriquez, Rodriguez v.

Gloria Macapagal-Arroyo, et al., G.R. No. 191805;PoliceDirector Gen. Jesus H. Verzosa v. Noriel Rodriguez, G.R. No.193160, April 16, 2013. (ResolutionEn Banc, Sereno, C.J.)

6) LGUs and DENR share the responsibility in thesustainable management and development of the forest

reserves within their territorial jurisdiction. The LGUs'capacity in forest management is to be enhanced and then the

primary tasks of management of devolved functions shall beperformed by the LGUs and the role of the DENR becomesassistive and coordinative.

Mayor Ruzol's permit to transport was held invalid for

failure to follow required procedure and for absence ofsupporting ordinance.

But he is not guilty of usurpation of official functionssince he acted in good faith and he did not intend his permit tosupplant that of DENR but to complement it.

(Leovegildo R. Ruzol v. Hon. Sandiganbayan, G.R. Nos.186735-960, April 17, 2013. (3rd Div., Velasco,J.)

1) Relinquishment and waiver of rights under contract byfailure to demand it... (F.F. Cruz & Co., Inc. v. HR

Construction Corp., G.R. No. 187521, March 14, 2012)

2) Recognization of foreign judgment (Minoru Fujiki v.Maria Paz Galela Marinay, et al., G.R. No. 196049, June 26,2013):

For the purpose, Philippine courts will only determine

(1) whether the foreign judgment is inconsistent with an


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overriding public policy in the Philippines; and (2) whetherany alleging party is able to prove an intrinsic ground to repelthe foreign judgment, i.e., want of jurisdiction, want of noticeto the party, collusion, fraud, or clear mistake of law or fact. Ifthere is neither inconsistency with public policy nor adequate

proof to repel the judgment, Philippine courts should, by

default, recognize the foreign judgment as part of the comity ofnations. Section 48(b), Rule 39 of the Rules of Court states

that the foreign judgment is already presumptive evidence ofa right between the parties. Upon recognition of the foreign

judgment, this right becomes conclusive and the judgmentserves as the basis for the correction or cancellation of entry inthe civil registry. The recognition of the foreign judgment

nullifying a bigamous marriage is a subsequent event thatestablishes a new status, right and fact. [See Rules of Court,

Rule 1, Sec. 3(c)] that needs to be reflected in the civilregistry. Otherwise, there will be an inconsistency between the

recognition of the effectivity of the foreign judgment and thepublic records of the Philippines.

3) IBP Election of Executive Vice-President (2011-2013) dispute resolved (Atty. Marcial M. Magsino,- et al. v.

Atty. Rogelio A. Vinluan, et al., A.C. No. 09-5-2-SC & AC No.

8292, April 11, 2013):

To avoid the endless conflicts, confusions andcontroversies which have been irritably plaguing the IBP, thesolution is to start another rotational round, a new cycle, open

to all regions. At any rate, all regions, after the election ofLibarios, would be considered as already having its turn in the

presidency. This is not to detract from the fact that underSection 47, as amended, and from the persistent rulings, the

position of EVP-IBP is the one being actually rotated, but asstated in the December 14, 2010 Resolution (Rollo, pp. 2998-3026), it will enable the IBP to start on a clean and correct

slate, free from the politicking and the under handed tacticsthat have characterized the IBP elections for so long.

Section 47 of the IBPBy-Laws should be fur ther

amended

Whatever the decision of the Court may be, to prevent

future wranglings and guide the IBP in their future course ofaction, Section 47 and Section 49 of the IBP By-laws shouldagain be amended. Stress should be placed on the automaticsuccession of the EVP to the position of the president.Surprisingly, the automatic succession does not appear in

present Section 47, as ordered amended by the Court in theDecember 14, 2010 Resolution. It should be restored.Accordingly, Section 47 and Section 49, Article VII, arerecommended to read as follows:

Sec. 47. Election of National President Executive Vice

President.The Integrated Bar of the Philippines shall have aPresident, an Executive Vice President, and nine (9) regional

Governors. The Governors shall be ex-officio Vice Presidentfor their respective regions.

The Board of Governors shall elect the President and

Executive Vice President from among themselves each by avote of at least five (5) Governors. Upon expiration of the termof the President, the Executive Vice-President shall

automatically succeed as President.

Each region, as enumerated under Section 3, Rule 139-Aof the Rules of Court, shall have the opportunity to have itsrepresentative elected as Executive Vice-President, providedthat, the election for the position of Executive Vice Presidentshall be on a strict rotation by exclusion basis. A region, whoserepresentative has just been elected as Executive Vice

President, can no longer have its representative elected for thesame position in subsequent elections until after all regions

have had the opportunity to be elected as such. At the end ofthe rotational cycle, all regions, except the region whose

representative has just served the immediately preceding term,may be elected for another term as Executive VicePresident inthe new rotational cycle. The region whose representative

served last in the previous rotational cycle may be electedExecutive Vice-President only after the first term of the new

rotational cycle ends, subject once more to the rule onexclusion.

The order of rotation by exclusion shall be withoutprejudice to the regions entering into a consensus to adopt anypre-ordained sequence in the new rotation cycle provided eachregion will have its turn in the rotation.

A violation of the rotation rule in any election shall bepenalized by annulment of the election and disqualification ofthe offender from election or appointment to any office in theIBP.

SEC. 49. Terms of office. - The President and theExecutive Vice-President shall hold office for a term of two

years from July 1 following their election until June 30 of theirsecond year in office and until their successors shall have beenduly chosen and qualified.

In the event the President is absent or unable to act, his

functions and duties shall be performed by the Executive VicePresident, and in the event of the death, resignation, or removal

of the President, the Executive Vice President shall serve asActing President for the unexpired portion of the term. His

tenure as such shall not be considered a new turn in therotation.

In the event of death, resignation, removal or disabilityof the Executive Vice President, the Board of Directors shall

elect among the regions qualified to be elected as ExecutiveVice President to serve the unexpired portion of the term or

period of disability.

In the event of the death, resignation, removal ordisability of both the President and the Executive VicePresident, the Board of Governors shall elect an ActingPresident to hold office for the unexpired portion of the term orduring the period of disability. Unless otherwise provided inthese By-Laws, all other officers and employees appointed bythe President with the consent of the Board shall hold office at

the pleasure of the Board or for such term as the Board mayfix.

Creation of a permanentCommittee for I BP Affai rs

To further avoid conflicting and confusing rulings in thevarious IBP cases like what happened to this one, theDecember 14,2010 Resolution and Velez [Velez v. de Vera, 528

Phil. 783, 810-812 (2006)], it is recommended that the Courtcreate a committee for IBP affairs to primarily attend to the


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problems and needs of a very important professional body andto make recommendation for its improvement andstrengthening.

WHEREFORE, the Court hereby resolves to:

1] GRANT the Motion for Leave to Intervene and to Admit theAttached Petition In Intervention;

2] DECLARE that the election for the position of the EVP for

the 2011-2013 term be open to all regions.

3] AMEND Section 47 and Section 49, Article VII of the IBP

By-Laws to read as recommended in the body of thisdisposition.

4] CREATE a permanent Committee for IBP Affairs.

SO ORDERED.

4) System of issuance of acknowledgment receiptsallowed. (Frederick James C. Orais v. Dr. Amelia C.

Almirante, G.R. No. 181195, June 10, 2013)

5) Collateral source rule not applicable to no-faultinsurance contracts (Darma Maslag v. Elizabeth Monzon, etal., G.R. No. 174908, June 17, 2013:

Atty. Funk erred in applying the

collateral source rule.

The Voluntary Arbitrator based his ruling on the opinionof Atty. Funk that the employees may recover benefits fromdifferent insurance providers without regard to the amount of

benefits paid by each. According to him, this view is consistentwith the theory of the collateral source rule.

As part of American personal injury law, the collateral

source rule was originally applied to tort cases wherein thedefendant is prevented from benefitting from the plaintiffsreceipt of money from other sources. (YOUNG, MELISSA.TORT REFORM AND THE COLLATERAL SOURCERULEwww.google.com;www.aaos.org/news/aaosnow/mar09/

managing4.asp.>, (visited March 1, 2013). Under this rule, ifan injured person receives compensation for his injuries from asource wholly independent of the tortfeasor, the paymentshould not be deducted from the damages which he wouldotherwise collect from the tortfeasor. (BLACKS LAWDICTIONARY WITH PRONUNCIATIONS, (Sixth ed.1990/Centennial Edition). In a recent Decision (Wills v. Foster,Jr., 229 Ill. 2d 393, 399 (Ill. 2008) by the Illinois SupremeCourt, the rule has been described as an established exceptionto the general rule that damages in negligence actions must becompensatory. The Court went on to explain that although the

rule appears to allow a double recovery, the collateral sourcewill have a lien or subrogation right to prevent such a double

recovery.(Id.) InMitchell v. Haldar, [883 A.2d 32, 37-38 (Del.2005)] the collateral source rule was rationalized by the

Supreme Court of Delaware:

The collateral source rule is predicated on the theory that atortfeasor has no interest in, and therefore no right to benefitfrom monies received by the injured person from sources

unconnected with the defendant. According to the collateralsource rule, a tortfeasor has no right to any mitigation of

damages because of payments or compensation received by theinjured person from an independent source. The rationale forthe collateral source rule is based upon the quasi-punitivenature of tort law liability. It has been explained as follows:

The collateral source rule is designed to strike a balance

between two competing principles of tort law: (1) a plaintiff isentitled to compensation sufficient to make him whole, but no

more; and(2) a defendant is liable for all damages that proximately

result from his wrong. A plaintiff who receives a doublerecovery for a single tort enjoys a windfall; a defendant whoescapes, in whole or in part, liability for his wrong enjoys a

windfall. Because the law must sanction one windfall and denythe other, it favors the victim of the wrong rather than the

wrongdoer.

Thus, the tortfeasor is required to bear the cost for the fullvalue of his or her negligent conduct even if it results in awindfall for the innocent plaintiff. (Citations omitted)

As seen, the collateral source rule applies in order toplace the responsibility for losses on the party causing them.

(PERILLO, JOSEPH M., THE COLLATERAL SOURCERULES IN CONTRACT CASES, San Diego Law Review, 46San Diego L. Rev. 705, 709-710 (Summer,2009);www.lexis.com.>. Its application is justified so that"'the wrongdoer should not benefit from the expenditures made

by the injured party or take advantage of contracts or otherrelations that may exist between the injured party and third

persons. (Wills v. Foster, Jr., supranote 40 at 397). Thus, itfinds no application to cases involving no-fault insurancesunder which the insured is indemnified for losses by insurancecompanies, regardless of who was at fault in the incidentgenerating the losses. (BLACKS LAW DICTIONARY, (Fifth

ed. 273, 1979). Here, it is clear that MMPC is a no-faultinsurer. Hence, it cannot be obliged to pay the hospitalization

expenses of the dependents of its employees which had alreadybeen paid by separate health insurance providers of said

dependents.

The Voluntary Arbitrator therefore erred in adoptingAtty. Funks view that the covered employees are entitled tofull payment of the hospital expenses incurred by their

dependents, including the amounts already paid by other healthinsurance companies based on the theory of collateral sourcerule.

6) Interest rates of 3%/month excessive and void!!! (Sps. Deo Agner & Maricon Agner v. BPI Family Savings

Bank, et al., G.R. No. 182963, June 3, 2013):

Settled is the principle which this Court has affirmed in anumber of

cases that stipulated interest rates of three percent (3%) permonth and higher are excessive, iniquitous, unconscionable,

and exorbitant. (Arthur F. Menchavez v. Marlyn M. Bermudez,G.R. No. 185368, October 11, 2012). While Central Bank

Circular No. 905-82, which took effect on January 1, 1983,effectively removed the ceiling on interest rates for both

secured and unsecured loans, regardless of maturity, nothing inthe said circular could possibly be read as granting carte

blanche authority to lenders to raise interest rates to levels

which would either enslave their borrowers or lead to ahemorrhaging of their assets. (Macalinao v. Bank of the
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Philippine Islands, G.R. No. 175490, September 17, 2009, 600SCRA 67, 77, citing Chua v. Timan, G.R. No. 170452, August13, 2008, 562 SCRA 146, 149-150). Since the stipulation onthe interest rate is void for being contrary to morals, if notagainst the law, it is as if there was no express contract on saidinterest rate; thus, the interest rate may be reduced as reason

and equity demand. (Arthur F. Menchavez v. Marlyn M.Bermudez, G.R. No. 185368, October 11, 2012, citing

Macalinao v. Bank of the Philippine Islands, supra, at 77,and Chua v. Timan, supra, at 150).

WHEREFORE, the petition is DENIED and the CourtAFFIRMS WITH MODIFICATION the April 30, 2007

Decision and May 19, 2008 Resolution of the Court of Appealsin CA-G.R. CV No. 86021. Petitioners spouses Deo Agner and

Maricon Agner are ORDERED to pay, jointly and severally,respondent BPI Family Savings Bank, Inc. (1) the remaining

outstanding balance of their auto loan obligation as of May 15,2002 with interest at one percent ( 1 o/o) per month from May16, 2002 until fully paid; and (2) costs of suit.

SO ORDERED.

7) Rule on pretermission of holiday if extension isgranted.(Reiner Pacific International Shippng, Inc., et al. v.Captain Francisco B. Guevarra, G.R. No. 157020, G.R. No.157020, June 19, 2013):

The correct rule, according to the clarification, is that"[a]ny extension of time to file the required pleading should x

x x be counted from the expiration of the period regardless ofthe fact that said due date is a Saturday, Sunday or legalholiday."

For example, if a pleading is due on July 10 and this

happens to be a Saturday, the time for filing it shall not run,applying Section 1 of Rule 21, on July 10 (Saturday) nor on

July 11 (Sunday) but will resume to run on the next workingday, which is July 12 (Monday). The pleading will then be due

on the latter date. If the period is extended by 10 days, such 10days will be counted, not from July 12 (Monday) but from theoriginal due date, July 10 (Saturday) "regardless of the fact thatsaid due date is a Saturday." Consequently, the new due datewill be 10 days from July 10 or precisely on July 20.

8) What is a derivative suit? (Juanito Ang, for and inbehalf of Sunrise Marketing (Bacolod), Inc. v. Sps. Robertoand Rachel Ang., G.R. No. 201675, June 19, 2013):

This Court, in Yu v. Yukayguan, (G.R. No. 177549, 18June 2009, 589 SCRA 588, at 618, citing Bitong v. Court of

Appeals, 354 Phil. 516 (1998) explained:

The Court has recognized that a stockholders right toinstitute a derivative suit is not based on any express provision

of the Corporation Code, or even the Securities RegulationCode, but is impliedly recognized when the said laws make

corporate directors or officers liable for damages suffered bythe corporation and its stockholders for violation of their

fiduciary duties. Hence, a stockholder may sue formismanagement, waste

or dissipation of corporate assets because of a special injury tohim for which he is otherwise without redress. In effect, thesuit is an action for specific performance of an obligation owed

by the corporation to the stockholders to assist its rights ofaction when the corporation has been put in default by the

wrongful refusal of the directors or management to makesuitable measures for its protection. The basis of astockholders suit is always one in equity. However, it cannot

prosper without first complying with the legal requisites for itsinstitution. (Emphasis in the original)

Section 1, Rule 8 of the Interim Rules imposes thefollowing requirements for derivative suits:

(1) [The person filing the suit must be] a stockholder or

member at the time the acts or transactions subject of theaction occurred and the time the action was filed;

(2) [He must have] exerted all reasonable efforts, and allegesthe same with particularity in the complaint, to exhaust all

remedies available under the articles of incorporation, by-laws,laws or rules governing the corporation or partnership to obtain

the relief he desires;

(3) No appraisal rights are available for the act or actscomplained of; and

(4) The suit is not a nuisance or harrassment suit.

Applying the foregoing, we find that the Complaint isnot a derivative suit. The Complaint failed to show how theacts of Rachel and Roberto resulted in any detriment to SMBI.

9) Period of Lease of land extended by the court (Conrado O. Almagro v. Sps. Manuel Amaya, Sr., et al. , G.R.

No. 179685, June 19, 2013)

10) Law of the case explained (Sps. Manuel Sy andVictoria Sy v. Genalyn D. Young, G.R. No. 169214, June 19,2013):

Law of the case has been defined as the opinion

delivered on a former appeal. It means that whatever is onceirrevocably established the controlling legal rule of decision

between the same parties in the same case continues to be thelaw of the case whether correct on general principles or not, solong as the facts on which such decision was predicatedcontinue to be the facts of the case before the court. (RadioCommunications of the Phils., Inc. v. CA, 522 Phil. 267, 273

(2006), citing Padillo v. Court of Appeals, 422 Phil. 334(2001).

We point out in this respect that the law of the case doesnot have the finality of res judicata. Law of the case appliesonly to the same case, whereas res judicataforecloses partiesor privies in one case by what has been done in another case.In law of the case, the rule made by an appellate court cannot

be departed from in subsequent proceedings in the same case.Furthermore, law of the case relates entirely to questions oflaw while res judicata is applicable to the conclusive

determination of issues of fact. Although res judicata mayinclude questions of law, it is generally concerned with the

effect of adjudication in a wholly independentproceeding. (Padillo v. Court of Appeals, supra, at 352, citing

Comilang v. Court of Appeals (Fifth Division), 160 Phil. 85(1975).

The rationale behind this rule is to enable an appellatecourt to perform its duties satisfactorily and efficiently, which

would be impossible if a question, once considered and


7/14

decided by it, were to be litigated anew in the same case uponany and every subsequent appeal. Without it, therewould be endless litigation. Litigants would be free tospeculate on changes in the personnel of a court, or on thechance of our rewriting propositions once gravely ruled onsolemn argument and handed down as the law of a given case.

(Zarate v. Director of Lands, 39 Phil. 747, 749-750 (1919).

11) Personal liability of superior for unlawfulexpenditures not present here(Rosalinda Dimapilis-Baldoz v.

Commission on Audit, G.R. No. 199114, July 16, 2013):

It is well to stress that neither will it do justice to hold

Dimapilis-Baldoz personally liable simply because shepossessed the final authority for the disbursements and had

direct supervision over her subordinates. Case law exhorts thatalthough a public officer is the final approving authority and

the employees who processed the transaction were directlyunder his supervision, personal liability does not automaticallyattach to him but only upon those directly responsible for theunlawful expenditures. (Salva v. Carague, G.R. No. 157875,December 19, 2006, 511 SCRA 258, 264). As Dimapilis-Baldozs direct responsibility therefor had not been

demonstrated, in addition to her good faith as above-discussed,there is no cogent factual or legal basis to hold her personallyliable. In this respect, the Court finds that the COA gravelyabused its discretion.

12) Constitutionality of RA 9263 (VAWC) sustained (Jesus C. Garcia v. Judge Ray Alan T. Drilon, et al., G.R. No.

179267, June 25, 2013)

13) Admin case vs a judge cannot be filed AFTER hisretirement (OCA v Retired Judge Guillermo R. Andaya, A.M.

No. RTJ-09-2181, June 25, 2013)

1) A preliminary investigation is either executive (bya fiscal) to determine probable cause to file a case in court, or

judicial (by a judge) to determine probable cause to issue awarrant of arrest.

The judicial type is called preliminary examination.

It's the duty of the judge to make it upon receiving acriminal complaint or information, so a motion for judicialdetermination of probable cause is superfluous.

In doing this (preliminary examination), a judge may

(1) dismiss the case outright, if from the records there's

clearly no probable cause;

(2) issue a warrant of arrest, if he determines that

probable cause exists, or

(3) ask the fiscal to submit more evidence.

(Virginia de los Santos-Dio v. Hon. Court of Appeals , G.R. No.178947;People v. Desmond, G.R. No. 179079, June 25, 2013.(2nd Div., Perlas-Bernabe,J.)

2) Claim for refund of tax from a local government(City of Manila) requires (1) written claim for refund/credit

filed with local treasurer and (2) case or proceeding for refund

filed within 2 years from date of payment of tax, fee or chargeor from date taxpayer is entitled to a refund or credit.

(Metro Manila Shipping Mecca Corp. v. Ms. Toledo, G.R. No.190818, June 5, 2013. (2nd Div., Perlas-Bernabe,J.)

3) The Paris Convention is recognized and protection is

extended to parties thereto in trademarks.

(Ecole de Cuisine Manille (Cordon Bleu of the Philippines),Inc. v. Renaud Cointreau & Cie and Le Cordon Bleu Int'l.,B.V., G.R. No. 185830, June 5, 2013. (2nd Div., Perlas-

Bernabe,J.)

4) A disqualified candidate whose certificate of candidacy

is cancelled after assumption of office is a defactoofficer. The cancellation/ disqualification thus creates novacancy and no succession occurs. The de jure officer justassumes the office.

(Svetlana P. Jalosjos v. Comelec, G.R. No. 193314, June 25,

2013. (En Banc, Sereno,C.J.,)

(5) Persons connected with the Court are barred fromacquiring properties and rights in litigation. (See, Art. 1491,

par. 5, Civil Code)

The meaning of in litigation is explained.

The prohibition arises from the relationship of trustinvolved and seeks to prevent fraud.

It does not apply where the transaction occurs after thecontest or litigation on the thing is over.

But property subject to estate proceedings, until such

proceedings are closed and terminated, the debts paid, and theestate is distributed to the heirs, are still in litigation andcovered by the prohibition.

(Sabidong v. Solas, A.M. No. P-01-1448, June 25, 2013. (En

Banc, Villarama,J.)

6) Romeo G. Jalosjos is perpetually disqualified from runningfor public office. No pardon or commutation of his perpetualdisqualification was given.

(Romeo G. Jalosjos v. Comelec, G.R. No. 205033, June 18,2013 (En Banc, Perlas-Bernabe,J.)

7) A. RuleWhere an employee is terminated for a just cause, no

separation pay is due,B. Exceptions

Except as an act of social justice or on equitable grounds,C. Exceptions to the Exceptions

But not where the dismissal (1) was for serious misconduct or(2)

reflected on the moral character of the employee.(Unilever Phil., Inc. v. Maria Ruby M. Rivera, G.R. No.

201701, June 3, 2013. (3rd Div., Mendoza,J.).


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Significant New

Decisions/Supreme CourtMarch 19, 2013 at 11:34pm

BY ADOLFO S AZCUNA --COPYRIGHT 2013.

Proceedings against attorneys are private and confidential.The final order, however, is publishable. (1)

An attorney was fined P20,000 for distributing to mediacopies of her complaint for disbarment against another lawyer.The members of media, however, who published the fact of

the filing of the complaint, were spared from sanction on theground that the subject matter out of which the complaint arose

was of public interest (the Ampatuan murder cases). (2)

Asking for separation pay does not prove abandonment ofemployment. (3)

The Rules allow a court to reverse its decision, even motuproprio, if it is incorrect and will cause injustice. (4)

A statute fixing the value for payment of just compensationin eminent domain is not binding on the courts. (5)

In a contract TO sell, full payment of the purchase price is asuspensive condition, so that non-payment by the buyer

prevents the condition from happening, and ownership remainswith the seller, with no remedies to the buyer. (6)

An employee can be dismissed for the just causes stated in

Art. 282 of the Labor Code. But the employer has to give hertwo notices: A first written notice that informs the employee

of the particular acts or omissions for which her dismissal issought; and--after the proper hearing-- a second written noticethat informs her of the decision to dismiss her. (7)

Failure to observe the two-notice rule for dismissal is adenial of due process but the dismissal, if for a just cause,remains valid. The employer is however liable for nominaldamages, now fixed at P30,000, for violating the rule. (8)

Petitioner is disqualified to run for mayor in the 2010elections for lack of residence. Building a house in the town in

not enough. (9)

Where the inculpatory evidence points to only one thing,the guilt of respondents as charged, the Court of Appeals erred

in applying the equipoise rule. (10)

A foreign corporation not doing business in the Philippines

can file before a Philippine court a petition for confirmation,recognition and enforcement of a foreign arbitral award. The

grounds are those set forth in Art. V of the New York

Convention on Recognition and Enforcement of ForeignArbitral Awards (1958), which Convention has beenincorporated into the our Alternative Dispute Resolution(ADR) Act of 2004, which is the applicable law. (11)

The rationale for the 12% interest in just compensation forproperties taken by the State, is to compensate property owners

for the income they would have made had they been properlycompensated for their properties at the time of the taking. (12)

Proof of the victim's age in rape cases is outlined in

PRUNA (2002) and reiterated in RULLEPA (2003):

1. The best evidence - original or certified true copy ofcertificate of live birth;

2. In its absence, similar authentic documents such asbaptismal certificate or school records,

showing the date of birth;3. If the above is lost, destroyed or not available,

testimony, if clear and credible, of victim's mother or familymember qualified to testify on the matter, applying the

provisions of Sec. 40, Rule 130;4. Absent these, the complainant's testimony will sufficeif expressly and clearly admitted by the accused;

5. The prosecution has the burden to prove the victim'sage. Failure of the accused to object to testimonial evidence

regarding age shall not be taken against him;6. The trial court should always make a categorical

finding as to the age of the victim. (13)

In Bigamy, the subsequent annulment of the first marriageis not a ground for exculpation. (14)

Only the Office of the Solicitor General can appeal hecriminal aspect of a case (acquittal in libel in this case). (15)

The doctrine of strained relations in labor cases applied.

(16)

The rule on forum shopping certification can be suspendedfor the sake of substantial justice. (17)

Where the elements of violation of B.P. 22 (BouncingCheck Law) already occurred, the pendency of a civil suit forrescission of the contract involved under Art. 1191, CivilCode, does not present a prejudicial question. The contract isvalid until rescinded, so there was no failure of considerationwhen the checks were dishonored. The contract, subject torescission, is only voidable not void. (18)

In cases of contributory negligence, the rule is a 60-40sharing, so the plaintiff can only recover 60 %. (19)

To hold a head of office in Government liable forconspiracy in approving the acts of his subordinate in an anti-

graft case, there must be showing of an "added reason" for himto scrutinize the details of the transactions in question. (20)

An example in drugs cases where the chain of custody was

held broken (21) and an example where, despite failure toobserve the niceties of procedure under the law, the convictionwas upheld because the integrity and evidentiary value of the

seized items were preserved. (22)


9/14

Piercing the veil of corporate fiction sustained on groundsof common ownership, identity of directors and officers,manner of keeping corporate books and records and methodsof conducting business. (23)

Disallowed benefits received in good faith need not be

reimbursed to the Government. (24)

Where a judgment has been executed pending appeal and itis subsequently reversed, partially or totally, or annulled--on

appeal or otherwise--the trial court may, on motion, issue suchorders of restitution or reparation of damages as equity and

justice may warrant under the circumstances. (25)

Ordinance No. 9503-2005 of the City of Cagayan de Oro is

declared void. It imposes a 10% tax on gross receipts of leaseof poles during the preceding calendar year, whereas the Local

Government Code limits the rate to not exceeding 2% of grosssales on receipts of the preceding year. (26)

A judicial claim for refund or credit of a tax can only befiled AFTER the lapse of 60 days from the filing of theadministrative claim. San Roque filed its judicial claim (for

over P400 MM) just 13 days after filing its administrativeclaim. It, therefore, cannot recove any refund or credit. (27)

N O T E S

(1) Sec. 18, Rule 139-B, Rules of Court.

(2) Fortun v Quinsayas, G R No 194578, Feb 13. 2013.

(3) Tegimenta Chemical v Oco, G R No 175369, Feb 27,2013.

(4) Ibid., citing Sec. 5(g), Rule 135, Rules of Court.

(5) Spouses Cabahug v NPC, G R No 186069, Jan 30,

2013, referring to Sec. 3-A,Republic Act No 6395 which provides that only 10%

of the market value of aproperty is due to the owner if it is subject to an

easement of right of way.

(6) Diego v Diego, G R No 179965, Feb 20, 2013.

(7) Sang-an v Equator Knights, G R No 173169, Feb 13,2013.

(8) Ibid., applying the AGABON doctrine (2004).

(9) Svetlana P Jalosjos v Comelec, G R No 193314, Feb26, 2013.

(10) Ombudsman v Mapoy, G R No 197299, Feb 13, 2013.

(11) Tuna Processing v Philippine Kingford, G R No185587, Feb 29, 2012.

(12) LBP v Obias, G R No 184406, Mar 14, 2012.

(13) Peo v Viojela, G R No 177140, Oct 17, 2012.

(14) Montanez v Cipriano, G R No 181089, Oct 22,2012.

(15) Bautista v Sharon G Cuneta-Pangilinan, G R No189754, Oct 24, 2012.

(16) Martos v New San Jose Builders, G R No 192650, Oct24, 2012.

(17) Rodriguez v People, G R No 192799, Oct 24, 2012.

(18) Reyes v Rossi, G R No 159823, Feb 18, 2013.

(19) Allied Banking Corp v BPI, G R No 188363, Feb 27,2013.

(20) Jaca v People, G R No 166967, and consolidated cases,Jan 28, 2013.

(21) Peo v Secreto, G R No 198115, Feb 27, 2013.

(22) Peo v Langcua, G R No 190343, Feb 6, 2013.

(23) Heirs of Fe Tan Uy v Int'l Exchange Bank, G R No166282, and consolidated cases,

Feb 13, 2013.

(24) Nazareth v Hon Reynaldo A Villar, G R No 188635,Jan 29, 2013.

(25) Ventanilla Enterprises v Tan, G R No 180325, Feb 20,

2013.

(26) Cagayan Electric v City of Cagayan de Oro, G R No191761, Nov 14, 2012.

(27) Com'r of Int Revenue v San Roque Power Corp, G RNo 187485, and consolidated

cases, Feb 12, 2013.

"Betrayal of Public Trust Defined

For The First Time" by JusticeAdolfo S. AzcunaOctober 3, 2012 at 9:13am

InEmilio A. Gonzales III v. Hon. Paquito N. Ochoa,Jr.,G.R.No. 196231, September 4, 2012, the Supreme Court, by a voteof 8 to 6, with Madam Justice Estela M. Perlas-Bernabeasponente, upheld the power of the President to remove theDeputy Ombudsman, pursuant to Republic Act No. 6770, the

Ombudsman Act of 1989, on the same grounds provided forimpeachment of the Ombudsman under the Constitution,

namely, culpable violation of the Constitution, treason, bribery,graft and corruption, other high crimes and betrayal of publictrust.

Deputy Ombudsman Emilio A. Gonzales III was removed

by President Benigno S. Aquino III on the ground of betrayalof public trust in connection with the manner he handled thecase of P/S Insp. Mendoza, the policeman who hijacked atourist bus at the Luneta.

The Supreme Court, while upholding the Presidents

power to remove petitioner Gonzales III on the ground ofbetrayal of public trust, held that in this case the acts and

omissions of petitioner did not amount to betrayal of publictrust.


10/14

Salient parts of the ruling defining for the first time theconcept of betrayal of public trust as a ground for removal, thesame ground available in cases of impeachment, are thus veryinstructive:

"The Constitutional Commission eventually found it

reasonably acceptable for the phrase betrayal of public trust torefer to '[a]cts which are just short of being criminal but

constitute gross faithlessness against public trust, tyrannicalabuse of power, inexcusable negligence of duty, favoritism,

and gross exercise of discretionary powers.' In other words,acts that should constitute betrayal of public trust as to warrantremoval from office may be less than criminal but must be

attended by bad faith and of such gravity and seriousness as theother grounds for impeachment.

"A Deputy Ombudsman and a Special Prosecutor are not

impeachable officers. However, by providing for theirremoval from office on the same grounds as removal byimpeachment, the legislature could not have intended toredefine constitutional standards as culpable violation for theConstitution, treason, bribery, graft and corruption, other highcrimes, as well as betrayal of public trust, and apply them less

stringently. Hence, wherebetrayal of public trust, for purposesof impeachment, was not intended to cover all kinds of officialwrongdoing and plain errors of judgment, this should remaintrue even for purposes of removing a Deputy Ombudsman andSpecial Prosecutor from office. Hence, the fact that the

grounds for impeachment have been made statutory groundsfor the removal by the President of a Deputy Ombudsman and

Special Prosecutor cannot diminish the seriousness of theirnature nor the acuity of their scope. Betrayal of public trustcould not 'overreach' to cover acts that are not vicious ormalevolent on the same level as the other grounds forimpeachment.

"The tragic hostage-taking incident was the result of a

confluence of several unfortunate events including systemfailure of government response. It cannot be solely attributed

then to what petitioner Gonzales may have negligently failed todo for the quick, fair and complete resolution of the case, or tohis error of judgment in the disposition thereof. Neither should

petitioners official acts in the resolution of P/S Insp.Mendozas case be judged based upon the resulting deaths at

the Quirino Grandstand. The failure to immediately act upon apartys requests for an early resolution of his case is not, byitself, gross neglect of duty amounting to betrayal of publictrust. Records show that petitioner took considerably less timeto act upon the draft resolution after the same was submitted tohis appropriate action compared to the length of time that saiddraft remained pending and unacted upon in the Office ofOmbudsman Merceditas N. Gutierrez. He reviewed anddenied P/S Insp. Mendozas motion for reconsideration withinnine (9) calendar days reckoned from the time the draftresolution was submitted to him on April 27, 2010 for the

latters final action. Clearly, the release of any final order onthe case was no longer in his hands.

"Even if there was inordinate delay in the resolution of

P/S/ Insp. Mendozas motion and an unexplained failure ofpetitioners part to supervise his subordinates in its prompt

disposition, the same cannot be considered a vicious andmalevolent act warranting his removal for betrayal of publictrust. More so because the neglect imputed upon petitioner

appears to be an isolated case.

"Similarly, petitioners act of directing the PNP-IAS toendorse P/S Insp. Mendozas case to the Ombudsman withoutciting any reason therefor cannot, by itself, be considered amanifestation of his undue interest in the case that wouldamount to wrongful or unlawful conduct. After all, takingcognizance of cases upon the request of concerned agencies or

private parties is part and parcel of the constitutional mandateof the Office of the Ombudsman to be the 'champion of the

people.' The factual circumstances that the case was turnedover to the Office of the Ombudsman upon petitioners

request; that administrative liability was pronounced againstP/S Insp. Mendoza even without the private complainantverifying the truth of his statements; that the decision was

immediately implemented; or that the motion forreconsideration thereof remained pending for more than nine

months cannot be simply taken as evidence of petitionersundue interest in the case considering the lack of evidence of

any personal grudge, social ties or business affiliation with anyof the parties to the case that could have impelled him to act ashe did. There was likewise no evidence at all of any briberythat took place, or of any corrupt intention or questionablemotivation.

"Accordingly, the OPs pronouncement of administrativeaccountability against petitioner and the imposition upon himof the corresponding penalty of dismissal must be reversed andset aside, as the findings of neglect of duty or misconduct inoffice do not amount to a betrayal of public trust. Hence, the

President, while he may be vested with authority, cannot orderthe removal of petitioner as Deputy Ombudsman, there being

no intentional wrongdoing of the grave and serious kindamounting to a betrayal of public trust."

New Supreme Court Decisions of

NoteFebruary 25, 2013 at 11:10am

(1) Civil Law; Obligations and Contracts. A debt is

liquidated even if lack of accounting is alleged.Applying Selegnaruling: TML Gasket Industries, Inc. v. BPI

Family Savings Bank, Inc., G.R. No. 188768, Jan. 7, 2013, 2ndDivision, Perez,J.

Labor LawLay-off is essentially retrenchment and underArt. 283 of the Labor Code a retrenched employee is entitled to

separation pay equivalent to one (1) month salary or one-half() month salary per year of service, whichever is higher.Applying the Sebuguero(1995) ruling. MINDANAOTERMINAL AND BROKERAGE SERVICE, INC., ET AL. V.

NAGKAHIUSANG MAMUMUO SA MINTEMBRO-SOUTHERN PHILIPPINES FEDERATION OF CEBU, ET

AL., G.R. No. 174300, Dec. 5, 2012. 1st Division, Leonardo-deCastro,J.

(2) Constitutional Law. The meaning of capital in theconstitutional provision limiting foreign ownership in publicutilities, Sec. 11, Art. XII, refers only to shares that can vote inthe election of directors. Application in case of foreign debt

converted to equity:First, identify into which class of sharesthe debt shall be converted, whether common shares, preferred

shares that have the right to vote in the election of directors ornon-voting preferred shares; Second, determine the number ofshares with voting right held by foreign entities prior toconversion. If upon conversion, the total number of shares


11/14

held by foreign entities exceeds 40% of the capital stock withvoting rights, the constitutional limit on foreign ownership isviolated. Otherwise, the conversion shall be respected.Applying the Gamboa v. Teves (2011) rule. EXPRESSINVESTMENTS III PRIVATE LTD AND EXPORTDEVELOPMENT OF CANADA V. BAYAN

TELECOMMUNICATIONS, INC., ET AL., G.R. Nos.174457-59, 175418-20 and 177270, Dec. 05, 2012. 1st

Division, Villarama, Jr.,J.

(3) Commercial Law. Pari Passuprinciple in rehabilitaitoncases explained.

The commitment embodied in thepari passuprincipleonly goes so far as to ensure that the assets of the distressed

corporation are held in trust for the equal benefit of allcreditors. It does not espouse absolute equality in all aspects

of debt restructuring.EXPRESS INVESTMENTS III PRIVATELTD, ET AL. V. BAYAN TELECOMMUNICATIONS, INC., ETAL. (see above).

(4) Remedial Law. Nice distinction between certiorari asspecial civil action to correct excess of jurisdiction

and certiorari as appeal to correct errors of law. The Court ofAppeals, in a special civil action for certiorari, went beyondfinding that therein respondent administrative official actedwithin his jurisdiction and proceeded to decide the controversyon its merits. Held, the Court of Appeals acted beyond its

jurisdiction and its decision is annulled and set aside.

Applying the doctrine inBarnes v. Padilla(2004), theSupreme Court also set aside technicality of procedure thattend to frustrate rather than promote substantial justice,regarding the period for filing a motion for reconsideration inthe Court of Appeals, and suspended the rules: The power to

suspend or even disregard rules can be so pervasive andcompelling as to alter even that which this Court itself had

already declared to be final.

(5) Administative Law. Reconstitution of title. Requisites.Proof a) that the certificate of title had been lost or destroyed;

b) that the documents presented by petitioner are sufficient andproper to warrant reconstitution of the lost or destroyedcertificate of title; c) that the petitioner is the registered owner

of the property or had an interest therein; d) that the certificateof title was in force at the first time it was lost or destroyed;and e) that the description, area and boundaries of the propertyare substantially the same and those contained in the lost ordestroyed certificate of title. ApplyingRepublic v. ElGobierno de las Islas Filipinas (2005),Held, the absence ofany document, private or official, mentioning the number ofthe certificate of title and the date when the certificate of titlewas issued, does not warrant [renders not warranted] thegranting of the petition for reconstitution.REPUBLIC OF THE

PHILIPPINES V. CONCEPCION LORENZO, ET AL., G.R.

No. 172338, Dec. 10, 2012. 1st Division, Leonardo deCastro,J.

(6) Corporation Law.Dissolution of a corporation does not

affect intra-corporate rights. It only prohibits the corporationfrom continuing its business. VITALIANO N. AGUIRRE II,

ET AL. V. FQB+7, INC., ET AL. G.R. No. 170770, Jan. 9,2013. 2nd Division. Del Castillo, J.

(7) Civil Law. Solutio indebiti, Art. 2154 of the Civil Codeembodies the concept ofsolutio indebiti, a quasi-contract,

which arises when something is delivered through mistake to aperson who has no right to demand it, which obligates thatperson to return what has been received through mistake.METROPOLITAN BANK & TRUST CO. V. ABSOLUTEMANAGEMENT CORPORATION. G.R. No. 170498, Jan. 9,2013. 2nd Division. Brion,J.

(8) Administrative Law & Civil Law. P.D. 957, TheSubdivision and Condominium Buyers' Protective Decree,

requires the bank to which a land converted tocondo/subdivision lots has been mortgaged, to release from themortgage the portions corresponding to lots or units already

paid for. [Azcuna's Comment: This is a departure from therule of integrity of mortgage that allows the mortgagee to

retain the mortgage until full payment.] REPUBLIC V.CESAR ENCELON, G.R. No. 170022, Jan. 9, 2013. 2nd

Division. Brion,J.

New Supreme Court Decisions of

NotePart 2February 27, 2013 at 10:32am

(9) Taxes and Duties. E.O. 156. Ban on Used-CarImportation Sustained [outside of Subic Free Port].EXECUTIVE SECRETARY, ET AL. V. FORERUNNERMULTI RESOURCES, INC., G.R. No. 199324, Jan. 7, 2013,2nd Div., Carpio, J.

(10) Political Law.No reimbursement to foreigner who buysland in violation of the Constitution. WILLEM BEUMER V.AVELINA AMORES, ET AL., G.R. No. 195670, Dec. 3,2012, 2nd Div., Perlas-Bernabe, J.

(11) Drugs. The four links in the chain of custody in drugscases enumerated. Applying People v. Kamad (2010) doctrine:

(1) The seizure and marking, if practicable, of the illegal drugrecovered from the accused by the apprehending officer; (2)

the turnover of the illegal drug seized by the appehendingofficer to the investigating officer; (3) the turnover by the

investigating officer of the illegal drug to the forensic chemistfor laboratory examination; and, (4) the turnover andsubmission of the marked illegal drug seized by the forensic

chemist to the court. PEOPLE V. RICARDO REMIGIO YZAPANTA, G.R. No. 189277, Dec. 5, 2012, 2nd Div., Perez,

J.

(12) Remedial Law. Exception to the doctrine ofimmutability of judgments. Respondents' personal obligationwas only P45,000. Due to their former counsel's grossnegligence in handling their cause, coupled with the RTC'serroneous, baseless and illegal award of 5% monthly interest,they now stand to lose their property and still owe petitioner a

large amount of money. The CA held that as a court of justiceand equity, it cannot in good conscience allow thisunconscionable situation to prevail. Petitioner invokes thedoctrine of immutability of judgment. Held, This Court isappalled by petitioner's invocation of the doctrine of

immutability of judgment. Petitioner does not contest as sheeven admits that the RTC made a glaring mistake in awarding

5% monthly interest. Amazingly, she wants to benefit fromsuch erroneous award. This Court cannot allow this injustice tohappen. LETICIA DIONA, ET AL. V. ROMEO A.


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BALANGUE, ET AL., G.R. No. 173559, Jan. 7, 2013, 2ndDiv., Del Castillo, J.

(13) Civil Law.Art. 121, Family Code. Liabilities chargeableto conjugal partnership. Art. 121, Family Code, allows

payment of the criminal indemnities imposed on the wife out

of the partnership assets even before these are liquidated, afterthe enumerated responsibilites have been covered. At the time

of liquidation, the offending spouse shall be charged for whathas been paid for such purposes chargeable to said spouse.

EFREN PANA V. HEIRS OF JOSE JUANITE, SR., ET AL.,G.R. No. 164201, Dec. 10, 2012, 3rd Div. Abad, J.

(14) Retirement Benefits. Not available to COMELECmembers who only had interim appointments that were not

confirmed, since they cannot be deemed to have completedtheir term of office, since such service does not constitute a

term, whether fixed or unexpired. EVALYN I. FETALINO,ET AL. V. COMELEC, G.R. No. 191890, Dec. 4, 2012, EnBanc, Brion, J.

(15) Labor Law. Where the arbitration clause covers anydispute by reason of difference in interpretation of the contract,

monetary claims under the contract are included, because thedetermination of the rights and obligations of the partiesinvolves interpretation of the provisions of the contract. THEMANILA INSURANCE CO., INC. V. SPOUSES ROBERTOAND AIDA AMURAO, G.R. No. 179628, Jan. 16, 2013, 2nd

Div., Del Castillo, J.

(16) Political and Remedial Law. Public officials who aresued may retain private counsel where personal liability issought or may result. Applying the Alinsug doctrine (1993),ROMEO A. GONTANG, ETC. V. ENGR. CECILIAALAYAN, G.R. No. 191691, Jan. 16, 2013, 2nd Div., Perlas-

Bernabe, J.

Significant NewDecisions/Supreme CourtMarch 19, 2013 at 11:34pm

BY ADOLFO S AZCUNA --COPYRIGHT 2013.

Proceedings against attorneys are private and confidential.The final order, however, is publishable. (1)

An attorney was fined P20,000 for distributing to mediacopies of her complaint for disbarment against another lawyer.The members of media, however, who published the fact of

the filing of the complaint, were spared from sanction on the

ground that the subject matter out of which the complaint arosewas of public interest (the Ampatuan murder cases). (2)

Asking for separation pay does not prove abandonment of

employment. (3)

The Rules allow a court to reverse its decision, even motuproprio, if it is incorrect and will cause injustice. (4)

A statute fixing the value for payment of just compensationin eminent domain is not binding on the courts. (5)

In a contract TO sell, full payment of the purchase price is a

suspensive condition, so that non-payment by the buyerprevents the condition from happening, and ownership remains

with the seller, with no remedies to the buyer. (6)

An employee can be dismissed for the just causes stated inArt. 282 of the Labor Code. But the employer has to give her

two notices: A first written notice that informs the employeeof the particular acts or omissions for which her dismissal is

sought; and--after the proper hearing-- a second written noticethat informs her of the decision to dismiss her. (7)

Failure to observe the two-notice rule for dismissal is adenial of due process but the dismissal, if for a just cause,remains valid. The employer is however liable for nominaldamages, now fixed at P30,000, for violating the rule. (8)

Petitioner is disqualified to run for mayor in the 2010elections for lack of residence. Building a house in the town innot enough. (9)

Where the inculpatory evidence points to only one thing,the guilt of respondents as charged, the Court of Appeals erredin applying the equipoise rule. (10)

A foreign corporation not doing business in the Philippinescan file before a Philippine court a petition for confirmation,

recognition and enforcement of a foreign arbitral award. Thegrounds are those set forth in Art. V of the New York

Convention on Recognition and Enforcement of ForeignArbitral Awards (1958), which Convention has beenincorporated into the our Alternative Dispute Resolution(ADR) Act of 2004, which is the applicable law. (11)

The rationale for the 12% interest in just compensation forproperties taken by the State, is to compensate property ownersfor the income they would have made had they been properlycompensated for their properties at the time of the taking. (12)

Proof of the victim's age in rape cases is outlined inPRUNA (2002) and reiterated in RULLEPA (2003):

1. The best evidence - original or certified true copy of

certificate of live birth;2. In its absence, similar authentic documents such as

baptismal certificate or school records,showing the date of birth;

3. If the above is lost, destroyed or not available,testimony, if clear and credible, of victim's mother or family

member qualified to testify on the matter, applying theprovisions of Sec. 40, Rule 130;

4. Absent these, the complainant's testimony will suffice

if expressly and clearly admitted by the accused;


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5. The prosecution has the burden to prove the victim'sage. Failure of the accused to object to testimonial evidenceregarding age shall not be taken against him;

6. The trial court should always make a categoricalfinding as to the age of the victim. (13)

In Bigamy, the subsequent annulment of the first marriageis not a ground for exculpation. (14)

Only the Office of the Solicitor General can appeal he

criminal aspect of a case (acquittal in libel in this case). (15)

The doctrine of strained relations in labor cases applied.

(16)

The rule on forum shopping certification can be suspendedfor the sake of substantial justice. (17)

Where the elements of violation of B.P. 22 (BouncingCheck Law) already occurred, the pendency of a civil suit forrescission of the contract involved under Art. 1191, CivilCode, does not present a prejudicial question. The contract isvalid until rescinded, so there was no failure of consideration

when the checks were dishonored. The contract, subject torescission, is only voidable not void. (18)

In cases of contributory negligence, the rule is a 60-40sharing, so the plaintiff can only recover 60 %. (19)

To hold a head of office in Government liable for

conspiracy in approving the acts of his subordinate in an anti-graft case, there must be showing of an "added reason" for himto scrutinize the details of the transactions in question. (20)

An example in drugs cases where the chain of custody was

held broken (21) and an example where, despite failure toobserve the niceties of procedure under the law, the conviction

was upheld because the integrity and evidentiary value of theseized items were preserved. (22)

Piercing the veil of corporate fiction sustained on groundsof common ownership, identity of directors and officers,manner of keeping corporate books and records and methodsof conducting business. (23)

Disallowed benefits received in good faith need not bereimbursed to the Government. (24)

Where a judgment has been executed pending appeal and itis subsequently reversed, partially or totally, or annulled--onappeal or otherwise--the trial court may, on motion, issue suchorders of restitution or reparation of damages as equity and

justice may warrant under the circumstances. (25)

Ordinance No. 9503-2005 of the City of Cagayan de Oro is

declared void. It imposes a 10% tax on gross receipts of leaseof poles during the preceding calendar year, whereas the Local

Government Code limits the rate to not exceeding 2% of grosssales on receipts of the preceding year. (26)

A judicial claim for refund or credit of a tax can only be

filed AFTER the lapse of 60 days from the filing of theadministrative claim. San Roque filed its judicial claim (forover P400 MM) just 13 days after filing its administrative

claim. It, therefore, cannot recove any refund or credit. (27)

N O T E S

(1) Sec. 18, Rule 139-B, Rules of Court.

(2) Fortun v Quinsayas, G R No 194578, Feb 13. 2013.

(3) Tegimenta Chemical v Oco, G R No 175369, Feb 27,

2013.

(4) Ibid., citing Sec. 5(g), Rule 135, Rules of Court.

(5) Spouses Cabahug v NPC, G R No 186069, Jan 30,

2013, referring to Sec. 3-A,Republic Act No 6395 which provides that only 10%

of the market value of aproperty is due to the owner if it is subject to an

easement of right of way.

(6) Diego v Diego, G R No 179965, Feb 20, 2013.

(7) Sang-an v Equator Knights, G R No 173169, Feb 13,2013

. (8) Ibid., applying the AGABON doctrine (2004).

(9) Svetlana P Jalosjos v Comelec, G R No 193314, Feb26, 2013.

(10) Ombudsman v Mapoy, G R No 197299, Feb 13, 2013.

(11) Tuna Processing v Philippine Kingford, G R No185587, Feb 29, 2012.

(12) LBP v Obias, G R No 184406, Mar 14, 2012.

(13) Peo v Viojela, G R No 177140, Oct 17, 2012.

(14) Montanez v Cipriano, G R No 181089, Oct 22,2012.

(15) Bautista v Sharon G Cuneta-Pangilinan, G R No189754, Oct 24, 2012.

(16) Martos v New San Jose Builders, G R No 192650, Oct

24, 2012.

(17) Rodriguez v People, G R No 192799, Oct 24, 2012.

(18) Reyes v Rossi, G R No 159823, Feb 18, 2013.

(19) Allied Banking Corp v BPI, G R No 188363, Feb 27,2013.

(20) Jaca v People, G R No 166967, and consolidated cases,Jan 28, 2013.

(21) Peo v Secreto, G R No 198115, Feb 27, 2013.

(22) Peo v Langcua, G R No 190343, Feb 6, 2013.

(23) Heirs of Fe Tan Uy v Int'l Exchange Bank, G R No

166282, and consolidated cases,Feb 13, 2013.

(24) Nazareth v Hon Reynaldo A Villar, G R No 188635,Jan 29, 2013.


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(25) Ventanilla Enterprises v Tan, G R No 180325, Feb 20,

2013.

(26) Cagayan Electric v City of Cagayan de Oro, G R No191761, Nov 14, 2012.

(27) Com'r of Int Revenue v San Roque Power Corp, G R

No 187485, and consolidatedcases, Feb 12, 2013.

) A preliminary investigation is either executive (by a

fiscal) to determine probable cause to file a case in court, orjudicial (by a judge) to determine probable cause to issue a

warrant of arrest.

The judicial type is called preliminary examination.

It's the duty of the judge to make it upon receiving a

criminal complaint or information, so a motion for judicialdetermination of probable cause is superfluous.

In doing this (preliminary examination), a judge may

(1) dismiss the case outright, if from the records there'sclearly no probable cause;

(2) issue a warrant of arrest, if he determines thatprobable cause exists, or

(3) ask the fiscal to submit more evidence.

(Virginia de los Santos-Dio v. Hon. Court of Appeals , G.R. No.178947;People v. Desmond, G.R. No. 179079, June 25, 2013.

(2nd Div., Perlas-Bernabe,J.)

2) Claim for refund of tax from a local government(City of Manila) requires (1) written claim for refund/credit

filed with local treasurer and (2) case or proceeding for refundfiled within 2 years from date of payment of tax, fee or chargeor from date taxpayer is entitled to a refund or credit.

(Metro Manila Shipping Mecca Corp. v. Ms. Toledo, G.R. No.

190818, June 5, 2013. (2nd Div., Perlas-Bernabe,J.)

3) The Paris Convention is recognized and protection isextended to parties thereto in trademarks.

(Ecole de Cuisine Manille (Cordon Bleu of the Philippines),Inc. v. Renaud Cointreau & Cie and Le Cordon Bleu Int'l.,B.V., G.R. No. 185830, June 5, 2013. (2nd Div., Perlas-Bernabe,J.)

4) A disqualified candidate whose certificate of candidacy

is cancelled after assumption of office is a defactoofficer. The cancellation/ disqualification thus creates novacancy and no succession occurs. The de jure officer justassumes the office.

(Svetlana P. Jalosjos v. Comelec, G.R. No. 193314, June 25,2013. (En Banc, Sereno,C.J.,)

(5) Persons connected with the Court are barred fromacquiring properties and rights in litigation. (See, Art. 1491,

par. 5, Civil Code)

The meaning of in litigation is explained.

The prohibition arises from the relationship of trust

involved and seeks to prevent fraud.

It does not apply where the transaction occurs after thecontest or litigation on the thing is over.

But property subject to estate proceedings, until suchproceedings are closed and terminated, the debts paid, and the

estate is distributed to the heirs, are still in litigation andcovered by the prohibition.

(Sabidong v. Solas, A.M. No. P-01-1448, June 25, 2013. (EnBanc, Villarama,J.)

6) Romeo G. Jalosjos is perpetually disqualified from runningfor public office. No pardon or commutation of his perpetual

disqualification was given.

(Romeo G. Jalosjos v. Comelec, G.R. No. 205033, June 18,2013 (En Banc, Perlas-Bernabe,J.)

7) A. RuleWhere an employee is terminated for a just cause, no

separation pay is due,B. Exceptions

Except as an act of social justice or on equitable grounds,C. Exceptions to the Exceptions

But not where the dismissal (1) was for serious misconduct or

(2)reflected on the moral character of the employee.

(Unilever Phil., Inc. v. Maria Ruby M. Rivera, G.R. No.201701, June 3, 2013. (3rd Div., Mendoza,J.).

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