Discrepancy between figures and words in election returns

Media

Part of The Lawyers Journal

Title: Discrepancy between figures and words in election returns
Creator: Asa, Leon L.
Language: English
Year: 1960
Subject: Philippines -- Law and legislation.; Courts.; Judgments (Law)
Rights
Fulltext: DISCREPANCY BETWEEN FIGURES AND WORDS IN ELECTION RETURNS By LEON L. ASA Memluw, Pkilippb&e BM An interesting queatlon of first impression was recently raised before the Supreme Court in the election· case "Manuel Abad Santos, petitioner, va. Judge A.rsento · Santos, of the Court of First l'natam:e -'Of Pampanp, ·md .Ba:fnl S. del. RGlario, respondent&". G.R. No. I..16876. The question was: when the number of votes received by a candidate written in figure& is different from that written in words, may the interested party aak for judicial reeounting of ~ under Section 163 in relation with Section 168 of the Revfaed Election Code? The facts of the case are briefly summarized aa follows: In the election.· held last November. 10, 19&9, for the office of· Municipal Mayor of Angeles, Pampanga, upon completion of the canvass made by the Municipal Board of Canvasser• of 1aid muntc:ipalitJ, Manuel Abad Santos obtained 6,618 votea while hie rival candid&~ Rafael S. del Rosario obtained 6,617 votes or a pluralitJr 9f only vote in favor of Abad Santos. Immediately, del Rosario filed with the Court of First Inetance of Pampanp a petition for a judicial ~ counting of the votes cut in Precinct Noa. ' and 4-A for the of. fice of Munieipal Ma:ror of Angeles, Pampanga, alleging iha.t there was a eonfllet In the election returne between the number of votes written in lett'1'• and the number of votes writt.en in fi. gures received by him. In Precinct No. 4, it appears in the four eopies of the election returns that del Rosario reeeived "one hundred five" votes written in worda and 11146" written in figures, while in Precinct No. 4-A, it appears that he received "one hundred. and nine" votes written in words and 11169" writtien in figures. one group, then democracy is in peril of its life. N~ matter wh_,. the Constitution may say, such a concentra.. tion of power can' exert well-nigh irresistible pressure on the courts, undermine the righta of the people through repeated en. croachmenta. or wipe them out- In one bold sweep against which effective redress shall no longer be found within the framework of the Constitution . And who shall rise to defend and protect the individual's bill of right.a, who shall rise to fight for the supremacy of the Constitution, and how can those who would do so upect the aupport of the majority of the people when the people, by then, shall have becon\e impassive to the repeated violations ana desecrations of the Constitution? Let us then congratulate ourselves that we still have the inclination and the ability to disagree to upose errors and misdeeds wherever they a.re found, and to detect and resist &DJ' conspiracy to unite and seize political power, and in the end, to call upon the people to restore the balance. I am l"eminded of a charaeter in Bernard Shaw's play, The Devirs Disciple. A woman reputed to be religious finds her faith shaken when she sees her enemies, whom she considers sinful, succeeding and prospering while she fails, and she upbraids the minister of the 'gospel with a heart full of regrets for her virture. "Why should we do our duty and keep God's law" she remonstrates, "if there ts to be no difference made between us and those who follow their own likingg and disliking& and make a jest of us and of their Maker's word?" I wonder if there are some of ua who, like that embittered old woman, believe that we should keep the Constitution and love de· mocracy only in the e:r.peetation of material rewards. Can our faith surmount the trial of suffering and resist the temptations of prompt relief In times of distress or ignore the lure of expe· dieney for the attainment of political ends? What if we were facinc a real national emergenq? Could The lower eourt granted the. petition of de1 Roari.o for a judicial recounting of the votes cast In said two precincts. Abad Santos tPen filed with the Supreme Court a petition for Prohibition with Preliminal'J' Injunction. The main argument of his lawyer is the following: "The mere diacrepanc:v between tbe words and the fieures in the election return as to the number of votes that a candidate has received is not the discrepalleJ' coa.templated in Section 168 in relation to Section 168 of the Revised Election Code. It is the discrep&DCJ' in the statementa - which stves to a cudidate a different number of votes and the differenee affecta the result of Ute eleetion. The • le&'lalature could DOt have intended that mere discrepancy between the words and the figures lhopld cause the reeountinc of the votes to determine the true result of the election, because it could not have ignored the rule of universal application that where the conflict is between words· and :figurea, .the words will be given ef. feet (82 C.J .S. '1211). · The general rule of construction la coneeded that, where there la a conflict between words and fipres, the former prevails; and this concession Is in accord with the text-books and decision. Wcwdet- "· Millard, 8 lAa.. 681-688; .Pavne v. C1Mk, 19 Mo. 162. Where a differenee appears between the words and fi. aures, eridence cannot be received to explain It; bnt the words in the bocb' of the paper must control; and if there Is (Con.tinaecl on •ed page) we be aure that the majority of our people would not follow the aad examples of desperate and ansry nations In the annals of • the democratic experiment, and that they will not discard the Constitution to gain a delusive salvation? Perhaps W'l believe in the Constitution only because it ts the thing to do, because we have learned it.a provisiona by rote in school like arithmetic and apelling and the Lord's Prayer, and not because we 11incerely and eonsciouslJ' belt8ve it to be the best and aurest ruai-anty of our chosen wQ" of life. The Constitution, through which all good things in our democracy have come into beine, and without which the7 could not have come to be, is the light of our nation, but this light cannot illumine those who neithttr understand. it nor love it, because men of little faith, Pharisees and money-changen, generations of vipers, in the angry words of the Lord, have hidden it under the bushel of their hypoeris:r and greed. Let us then bear witness to the Constitution, so that, in the la11A"11age of the gospels, all the people may learn to believe. If our nation ia to survive and attain greatness in freedom the Con· stitution must live in our .actions, both as individuals and as a people, in the enlightened conviction and steadfast belief that only in the spirit of the Constitution, infused in us, shall democracy abide with us and our nation forever enjoy the blessings of independence under a regime of justice and liberty, and fulfill its deatillJ' within the Lord's Kingdom. Neither in the toils of the day nor in the vigils of the night can the sentinels of the Constitution relax their vigilance. Let us all be wary and stand by our arms, leat, b:r culpable tolerance or by criminal negligence, our countey should in some forbidding future become a desolate Carthage wherein only the naked ruins of our republic shall remain, fallen monuments of the past in whose debris our deaeendanta, bJ' then th8 forlorn bondsmen of some corrupt deapot, ahall in vain endeavor to cleC1'"pher the Ian. guage of the Constitution, Inscribed, as in ,forptten hieroglJphs, on the sarcophagas of oar dead. freedoms. February 29, 1960 LAWYERS JOURNAL SUPREME COURT DECISIONS I BWMen.i4o Nsra, Pef:ition6'rdppelld, v•. Paulino ~ Sso..,,....,, of Heallk, .. d ~ EU...., Dirsalor of Ho.,.uai., B~tB-Ap,,_UG7itl, G.R. No. £.18189, J""" 30, 1960, Mntcmopr, J. 1. PUBLIC OFFICERS; SUSPENSION OF OFFICER PEND· ING INVESTIGATION. - Suspension la a preliminary atep In an administrative in.utigation and if after such investigaion, the charges are eatabli1hed and the person investigated ii found guilty of acts warranting hia removal, he is removed or diamiued. ·Thia is the penalty. TbeH la nothinc improper in suspending an officer pending his investigation and before the ebarges against him are, heard and he la given an 'opportunity to prove his · Innocence. In the case at bar, the suspension of petitioner before he could file his answer to the adminiltrative com.plaint was not a punishment or penalty for tho acts of diahoneatr and miaconduet In offiee, bJlt only as a preventive meaaa.re. 2. ADMIN'ISTRATIV.E LAW; PREVENTIVE SUSPENSION; SECTION 684 OF REVISED ADMINISTRATIVE CODE CONSTRUED. - Under the proviaion of Section 694 of' the Revised Administrative Code, the comma after the words dishonesty and oppreuion warrants the conclU8ion that onl)r the phraaa "grave misconduot or neglect" is qualified by the word1 "in the performance of duty'' and, therefore, dishoneatJ' and oppresaion to warrant punlahment or diamts1al, need not be committed in the course of the performance of duty by the peraon charged. 8. ID.; ID.; SECTION 84 OF REPUBLIC ACT NO, 2260 CONSTRUED. - Section 84 of Republic Aet No. 2260, known' al the CiYil Seniee Act of 1969 introduces a ehanp into Section 694 of the .Re-riaed Administrative Code by placlnc a erom.ma after the worda 41gra-.e misconduct", so that the phraae "in the pel'formance of duty" instead of qualifJ'iJls' "grave misconduct or neglect" as it did in Section 694 of the 'Rev:laed Administrative Code, now qualifies only the last word "negleet", making clear the legialative intent that to justify . suspension,· when the person charged is pilty merely of neglect, the same must be in the performance of hi1 duty; but when he is charged with dishonesty, oppression or crave misconduct. theae need not have a relation to the performance of duty. '· ID.; SUSPENSION OF ELECTIVE OFFICERS AND AP· POINTIVE OFFICERS OR EMPLOYEE. - An elective of. fieer, elected by ~opular vote, is directly responsible only to DISCREPANCY •• , (G'onlin,...t from pogo 87) difference between printed and written words, the written must control. Kimball v. Coses, 104 Am. St. R.,. 98'7, 989. Whei"8 the sum payable ia expressed in words and alao in figures and there fa a. diacrepaney between the two, the sum denoted by the words is the sum payable; but If the words are ambiguous ·or uncertain, reference DlQ' be had to the fi. gores to fix the amount. Settion 1'7 (u), Ne11otiable lnatnc. meats LavJ. When an instrument consists partlJ' of written words and partly of a printed. form and the two are inconsistent, the former controls the latter. Rul11 123, Seetin. 63, Rules of c ...... Prudence demands that the reerounting of votes be limited to instances where the discrepancies refer to the number of votes appearinr In the different copies of the election letums. It should not be applied to a mere diserepaney between the figures and the words in the return: fol' it la a mattier of common knowledge how eaq it ia to eommit mistakes in "'!11tlng figures. That is why the "the community that elected him and, ordinarily, i1 not amenable to rule1 of official conduct goyerninr appointive offieiala and may not be forthwith and aummarib" 1111pended, unleu his conduct and acts of lrresularity have some eonuction wHb his offiere. An eleetift official ',has a definite term of office, relativeb' of llhort duration and since BUIJlemion from his office affects and shortens the term of office, said 1uapenalon should not be ordend and done unle11 neeesB1U7 to prevent :further damage or inj11l'1' to the office and to the people dealing· with said officer. Joae Toma.nng Guerrwo, for petltloner...appellee. AoUng Solicitor Gexmil GviH.,.,,.o B. Ton-ea & Sotioitor C• milo D. Quiaacm, for respondent&appellants. DECISION Respondents are appealing the decision of the Court of First Instance of Manila, dated October 80, 195'7, ordering them to reinstate petitioner Bienveliido Nera to his former position u el.erk In the Maternity and Children.'1 Hospital, and to pay him hi1 back salary from the date of his suspension until reinstatement. The facts in this ease are not in dispute. Petitioner Nara, a civil aeniee eligible, was at the time of his suspension, senlng as clerk in the Maternity and Child.em's Hospital, a eovernment institution under the Superrision of the Bureau of Health. In the eourae of his employment. he served as manager and cashier of the Maternity Employee's Cooperative A1aoeiation, Inc. Aa aueh manager and cahier, he wa1 su.ppoaed to have under his eontrol funds of the a•soeiation. On MQ" 11, 1956, he was charged before the Court of ll'lrat Instance of Manila with malvenation, Criminal Case No. 8644'7, for allepdly ml•appropriatin&' the sum of P12,636.21 belonging to the aaaoclation. Some months after the flllnc of the criminal ease, one Slmplieio BaleOa, hullband of the suspended adminlltratlve officer and eaahier of the Maternity and Children's Hospital, named Gregoria Balcos, filed an administrative complaint against petitioner Nera, on the basis of the criminal case then pendinl' against him. Acting upon this admlniatratln complaint and on the baaia of the information filed In the cttiminal case, as well as· the· report of the General Auditing Office to the effeet that as a rUult of its examination of the aceounta of Nara as manager and eaahier of the assoela tion, he was liable in the amount of Pl2,,636.21, the executiu offierer, Antonio Rodrigues, acting for and in the absence of the Director of Hospitals, required petitioner to explain within aeventJ'· two hours from receipt of the communication, Ezhibit D, why he should not be aummarily diamiaaed from the aenice for act.a in. law requirea that the total number of votes polled by each candidate should be written out in the statement.a in words and In ficUrea (Section l&O, Revised. Election Code)." The Supreme Court dismissed the petition "for lack of merits". However, in the case of Parlade et aL vs. Judge Quicho et al., G.R. No. L-162159, December 29, 1969, the Supreme Court in a divided decision ( abr: against fin) declared that where there ta conflict "in the statement it.self, words contradicting figures, there ariaea n= neodaitflt• ,..; the need of findine, which statement of number should be followed. by the Board,n and "the law &"ivea the court of first instance power to recount the votes east in the pre. cinct." It may be said, therefore, although It la not a settled doctrine. because the Court was almost equally divided - that in case of discrepancy between the figarea and the wont. in the election returns aa to the number of votes received by a particular candidate, such discrepancy eronatitutea a legal ground for the recounting of votes under Section 168 in relation with Section 168 of the Revtaed Election Code. 38 LAWYERS JOURNAL February 29, 1960 volvins dl1honeaty. Thl1 period of seventy-two houri was extended to December .20, 1966. Before the expiration of the period a• estended, that ill,· on December 19, 1956, Nera received a communication from respondent Director of Hospitals suapendinl' him from office u · clerk of the Maternity and Children's Hospital, effective upon reeeipt thereof. Thia suapenaion earried the approval of reapondent Gareia, Seeretaey of Health. The petitioner asked the PCAC to Intervene on his behalf, which office recommended to respondents the lifttnl' of the auspenaton of petitioner. Upon failure of re1pondents to follow 1aid reeom.endation, petitioner asked ruponderrte for a reconatderation flt hta-napenaion,.. .w.bieh .. nqueat ·was .denied •. Petitlone.r then filed the present special civil aetion of prohibition, certiorari and man. damu1 to restrain re1pondents from proceeding with the adminl• tratiye ease &K&inlt him until after the termination of the crimi na1 ease; to annul the order of suapen1lon dated Deeember 19, 1956, and to compel respondents to lift the suspenaion. After hearing thia special civil action, the appealed clecision waa rendered. The trial eourt held that petitioner was illeply. auapended, first b• eauae the BUSpenaion ca1ne before he was able to file his answer to the administrative complaint, thereby depriving him "of hl1 right to a fair hearing and an opportunity to present his defense, thus violating the due proeeu clause" i also, that aauminl' for a moment that petitioner were pilty of malveraation or miaapproprlation of 'the funds of the aasoc:IatiOn, nevertheleu, 1aid irregularity had no connection with hia duty as clerk of the Maternitr and Children's Hospital • In connection with the suspension of petitioner before he could file his answer to the administrative eomiftaint, suffice it to say that the auspension was not a punishment or penalty for the act of dlahonesty and tnfac0nduet in office, but onlJ' as a preventive measure. Su1pension is a preliminary step in administrative inTfftiptlon. If after such investigation, the charges are established and the person Investigated is found guilty of acts warranting hla removal, then he is remowd or dismissed. Thia is the penalty. There is, therefol'e, nothine improper in auapendine an" officer pend.inc his investigation and before the charges against him al'e heard and he is giVen opportunity to prove his innocence. As to the holding of the trial court about dishonesty or mis· eonduet in office having eonnectlon with one's duties and functions in order to warrant punishment, this involves an interpretation of Seetion 694 of the Revised Administrative Code, which for purposes of refeJ:ence we reproduce below: "SEC. 694. Rsmovml or l'l&lpenaiox. - No officer or employee in the civil 181'Vice ahall be removed or suspended except for cause as provided by law. "The President of the Philippines may auapend any chief or aaaistant chief of a bureau or office and in the absence of special provision, any other officer appointed by him, pending an investigation to the chargea against such officer or pending an investigation df his bureau or office. With the approval of the proper head of department, the chief of a bureau or office may likewise suspend any subordinate or -employee in his bureau or under hia authority pending an investigation, if tke elw.1'fl• mgsinat aucA nbord'ina.t. or erftploll'• involvea dishonesty, oppna~n, or grave miecon.duct or neglect in the performa:nce of due.." It will be obsei-ved from the last four lines of the second pa,. ragmph that there is a comma after the words dishonesty and oppression, thereby wan-anting the conclusion that only the phrase "grave mlseonduet or neglect" is qualified by the words "In the performance of duty". In other words, dishonescy and oppression to warrant punishment or dismissal, need not be committed in the course of the performance of duty b1 the person charged. Section 84 of Republic A.et No . .2260, known as the Civil Service A.et of 1959, which refers to the aame aubj,eet matter of preventive suspension, throw aome light on this seeming ambiguity. We p1'0duce said seetion 34: ' "SEC. 84. Pnvm.eiv. Suspmrion. - The President of the PhlUpplDel DlaJ' napend any chief or uelltant clrief of a bureau or offiee and tn the abaence of spedal prorilliaD, •DJ' _other officer appointed b7 him, pendins an inftltlgatien of the eharce. againat such oftieer or pending aD inveltipdon of his bUreau or office; With the approval of the proper Head of Department, the chief of a bureau or office m&J' llkewlee pnmmtivelJ' nspend &DJ' aubordinate officer or emploJee in his bureau or under hill authority pending an invutiption,, if the charge against such officer or emploree :lnvolftl cfiaAonntiy, oppnasion. ot' gra,ve -U~o&. or uglect ii& th fl'W'fO'J'o msnee of du,., or it there are strong reasons to believe that the respondent ia guilty of eharges whleh would warrant hia rem.oval from the aerv:lee." It will be noticed that It lntroduees a amall change :Into Seetion 694 of the Reriaed Administrative Code by plaeing a comma after the words "grave m:laconduet", ao that the phrase "in the performance of dutJ"'' instead of qualifJing "grave m:laconduet or neglect", as it did under Section 694 of the Revised Administratin Code, now qualifies only the last; word "neglect'', thereby making clear the leaialative intent that tp juatifJ' suspension, when the perIOD charged ta guilty merely of neglect, the same must be in the performance of his duty; but that when he is charged with dishonesty, oppression or sUve miscancluet, 'these have no relation to the performance of dut,-. Thia is readily understandable. If a Government officer or employee ia dlshoneat or ia gu.ilQr of opprea. sion or l'l'ave misconduct, even if said defects of eharaeter are not connected with his office, th8J" affect ht1 right to continue In office. The Government eannot well tolerate in its eervice a dishonest official, even it he performs his dutiea correetly and well, becauee by reason of hia pvemment position, he ia Oven more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the GOftl'lllllent other than the office where he is employed; and by reason of hl1 office, he enjOJS and posuu a ceitain influence and power which renden the victim.a of his grave miaeonduct. oppreaaion "and diahoneety lel1 di• posed and prepared to resist and to counteract his evil &eta and • actuations. As the Solicitor General well pointed out in hla brief "the private life of an employee cannot be aegregated from his pub.. lie life. Diahoneaty Jnevitabl,. refleeta on the fitneu of the officer or employee to" continue In office and the discipline and morale of the service," It may not be amlas to state here that the allepd miaappropriation Involved in the criminal ease Is not entirely dlsconneeted with the otflcie of the petitioner.· True, the· Maternity EmplOJ'ft'S Cooperatin Aaaociation that owns the :funds said to have been misappropriated is a private entity. However, as its name implies, it is an aaaoeiation composed of the employees of the :Maternity and Children's Hospital where petitioner waa serving as an em· ployee. Moreover, If petitioner waa designated to and occupied the position,. of manager and eaahler of said aPOCiation, it wa1 because he wu an emplOJ'ft of the Maternity and Children'• Boapit.al. The eonneetlon though indirect, and, in the opinion of some, rather remote, ezista and is there. The trial court citea t)le cases of llondano ft. Silvoea (G. R. No. L-7708, May 30, 1965), Lacson va. Roque (G. R. No. t..8081, Oct.ober 1', 1958), and others to sapport its holdin&' that an official m&J' not be suspended for irregularities not eommitted tn connection with his office. These caae.9, however, involve electin. officials who stand on ground different from that of an appolntin officer or employee, and whose suspelllion pending an invelltigatlon ia governed bJ' other laws. Furthermore, an elective officer, elected by popular vote, ia direetly responsible only to t.he com· munitJ' that elected him. Ordinarily, he- ia not amenable to rules of official eonduet goveming appointive officlals, and ao, ma1 not be forthwith and sun;i.marily suapended,. unless his conduct and ads of irrewalarit,' have some c:onnection with his office. Furthermore, an elective offieial bu a definite term of office, relat.I~ of short duration; naturally, aint!ll suspension from his olfide definitely affedl and short.ens this term of office, said suapenalon Fobruaey BS, 1960 LAWYERS lOURN~L 19 should not be ordered and done unlel1 neceasary to prevent :further damage or injuZ'J' to the office and to the people dealinc with said -· In view of the eonclulon that wa haq arrived at, we deem it unneceua.17 to dllCftlll and determine the other qautioae raUed in the appeal. , JN VIEW OF THE FOREGOING, the appealed. deefsion is hereby ravened, with costs. Paru, C. J., Benpotf, Padilla. Bav.Nta At1gttlo, Labrador, COXHpoion,, J. B. L. Bet1a, End#mOUI, BtJ#'fWO GRd Gutief'Ns D• 11id, JJ., concurred. II Dr. CestW S"""'°"' Petitioner, va. Hoa. Numeriono G. Eatmuo, JwJ.11• of tW COW"t of Firat Inse.nc. of Lqte, 11th. Jt&dimal Diateriot,· 5tlt. Brancl at Ormoo City, and Mirs. ABUncion. Con.ui Om#,a, RQJJOndnta, G. R. No. L·16286, latllfllllll'7I 30, 1960, ConolflCion, J, 1. ELECTION LAW; DISCREPANCY BETWEEN ELECTION RESULT NOT GROUND fOR RECOUNTING OF VOTES; CASE AT BAR. ...... Petitioner and respondent were, among others, candidate. for councilor of the CitJ' of Ormoei in the oelectiona of November 10, 1969. After the canvass, petitioner garnered enough votes to be proclaimed as the eigb.t councilor, with plurality of three votes over hta nearest opponent, )!rs. Omega. Respondent then filed with the Court of First Ins. tance a petition to recount the votes ill. Precinct Nol. 1 '1 ana 18 on the 11:ound that the eleation retnrns which gave bar· 68 votes in each precinct.a were contradleted by the cerUfication of the reault of tlJ.e eleetion i~orated in Form No. 8 of the Commission on Elections, ·which pve her only 6'7 and 69 votes respectively. ·On November 24, 1959, said reapondent amended her petition by includin&' Precinct No. 8 on the l'l'Owtd that in the election result certified by the Board. of Eleetion Inspect.ors in the Transcript of Election Returns, only 41 votes were tallied in favor of petitioner but in the election mums, petitioner &"Ot 71 votes. The lower court enjoined the Mun~ cipal Board. of Canvauen from proceedinc with the canvass. On November 26, 1959, the lower court isRUed another order directing the Boa"l'd. of can.aUers to open the ballots bona for Precincts Na& 8, 17 and 28 to determine who is the elected candidate for etty erounellor. The motion for ..reconsideration having been denied, petitioner brous)lt the present p8titiom. Hald: Insofar as they direct the Board of Canvauera to open the ballot bona of Precincts Nos. 8, 17 and 28, the orders are contrary to law. Thia case does not fall under aeotion 168 of Republic Act No. 180, authorizinl' the recount of tho ~tes east in a given preeinet when another copy or other authentic copies of the statement from an election preciDct submitted to the board gives a c:andidate a different number of wtes and the difference affects the result of the election. The recount so authorized, mast be made by the Court of First Instance itiel:t, not by the Board. of Canvaalera, as or· dered by reQ>Olldent juclp and for the sole ...,..,. of .i. termininc which is the true statement; Or the true reault of the count of the votes cut in a l'iven p~inct and not to determine who is the elected candidate. 2. ID.; DISCREPANCY BETWEEN ELECTION RETURN AND CERTIFICATE OF VOTE NOT GROUND FOR RECOUNTING OF VOTES. - Where the COllflict is between the election returns or statement& of the cvunt alluded to tn section 160 of the Revised ·Electi_on Code and the certificaW mentioned in section 168 thereof, sections 168 and 168 of the Revised Election Code are not applicable (Parlarde et al., vs. Quicho, et al., G. R. No. L116259, Dec. 29, 1969). DECISION Thia ls a petition for certiorari and prohibition to enjoin the Judge, Hon. Mariano C. Eatenzo, from enforcing: its order of December 1, 1959, to open the ballot bans of Precincts Nos. 8 1 '1 and 28, of Ormoc City and make a recount of the votes the'rein cast. The petition, likewise, contained a. pr&)'er for a writ of prellminary injunction, which we iuued upon the filing al tJae requiait.e bond. Petitioner Dr. Oeur Samson and ~ herein, Mn. Aluncion Conui Omega, were, amonc other, candidates for .... cilor of the City of Ormoc in the ceneral election.a held on Nn· ember 10, 19&9. After a canftSS by the Cit, Board of Canvaa. Hr& of the votes then cast, it appeared, on November 83, 1959. that Sanaaon had garnered. enough votes to be proelaimed aa the last of the eicht (8) conumlors elected to the eltJ' council, with a plurality of three (3) votes over his neare,st opponent, said. llra. Conui Omega. BO'Weftl", on the same date the latter filed with the af~tloned Court of First Instance a petition for the recounting of the votes east in Preclnet.s Nos. 1'1 and 28 of said city, upon the ground that the eleetion :returns therefor, which ~ve her 68 votea in each precinct, were eontradieted by the certification al the result of tlle elect.ion therein, incorporated. in Form No. 8 of the Commission on Elections, aercording to which she pt only 6'7 and 59 votes, respectively. On November 24 Mrs. Omega mnended her petition by including in her request for recount the ballot box of Precinct No. 8 of Ormoc City, upon the ground that, in said precinct, "the .:ir: x x eleetion 1'88ult certified. by the Board of Election lnapectora in the Tranacript of Election Returu (Elecaee form) submitted. to and as gathered by the 39th PC Company, Onnoc City, which is duly deputized acenay of the CommiBBion on Elections, only 41 votea were tallied In favor of Dr-1Cesar Sam. . son", whei-eaa "the same Board of Elet"tion ID1Pectors x x x in another statement (referring to the election returns), "certified that the same eanclidate Dr. Cesar Sam.eon got '71 votea". Upon the filing of said amended petition, the Court of First Inst.nee iuued an order enjoining the Municipal Boa.rd of Canvauen •'from further proceedinc with the canvaun until further orders, and, relyinc upon sections 163 and 168 of the Revised Election Code, the court Issued on November 26, 1969, another order the depositive part of which reada: "The Board of Cannsaers is hereby directed to open. the ballot boxes for precinct NOS. 8, 17 and 28 ao that they may proceed to recount the votes of Dr. Samson and Mn. Omega for ' the sole purpose of determininc who is the elected candidate for city councilor. ••Taking into account the fact that there are ten mem· bers of the Board of Canv&ISel'a, the members of the Board of Canvassers are hereby directed ·to divide themselvea into three divisions so that each division of three may take care in the counting of votes in every precillCt and the Chairman . will act as the supervisor. Di-. Samson and llrs. Atunclon c. Omega may appoint watchers with one. watcher for each .. id party for every division. The counting shall take place immediately before this Court.'' A reconsideration of thie order was dented by another order bearing the same date, which, likewise, stated that: "Taking into account that tommorrow is a special publiC' holiday and there is no probability that the said keya will arrive Ormoc City on that day, the said members of the Board of Caiavauers are hereby notified that the ballot for precincts Nos. 8, 1 '7 and 28 will be opened before this Court on November 11, 't951, at '7:30 A.M., with notice to all the members of the Board of Canvassers, as well as to Att.ornen Ben~ jamln Tugonon, Mendola, Teleron and Brocoy, in open erourt.'' A motion for reconsideration of the latter order having had · the sense fate, Dr. Samson instituted the present case, for the purpose adverted to above. At the outset, tt is clear that, insofar as they direct the Board of Canvassers to open the ballot boxes of Precincts Nos. 8, 1'7 and ZS, the ordera complained of are erontra17 to law. Respondent& herein 1eem to have acted under the impression that this ease falls under aeetton 168, in relation to section 188, of Republic Act No. 180, authorizinc the recount of the vote aast in a giftn precinat when ."another copy of other authentic copiel of the &iat.&m.ent fi"OJR an election preelnet submitted to the board. gives a candidate a differat number of votea and t.he difference affects •o LA WYERS JOURNAL the relUlt of the election s x s". Boweftl', the recount ao authoriud, must be made by "the Court of Fint In.tance" itself, not by the Boa.rd of Ccm.1HNUn, as ordered bi' the respondent Judp. lrforener, aaid recount is authorised "for the eole purpoae of determining"' not 11who ii the elected candidate" as Btatecl m the first order of respondent Judge, dated November 21, 19&9, bu.t ''toAiel ill tM mi.. at&tetnmt or which I• the true result of the count of the votes cut" in the precincta in queetion. Again the alleged ®nflieta in the cue at bar exist between the election returns, or statements of the count alluded to ill aeetlon 160 of aaid Aet, on the one hand, and the certificate mentkmed ·In· ·aeetion 168 thereof, on the .other, and we have already held in J oee Parlade, et al. vs. Perfect.a Quicho, et al., G. R.. No. L-16289 (Deeember 29, 19U) that the aforomentioned ..._ tions 168 and 168 are inapplicable to such situation. WHEREFO;RE, the orders com.plained of are set aside and the writ of preliminary injunction iasued herein ie hereby made permanent, with cost againat respondent Mra. Asuncion Canul Omega. . IT IS SO ORDERED. Bnl(Json., Padilra., L&lwodor, J.B.L. R.,c1 Hd BGtTH'tJ, JJ., coneur1-ed. Pclnll, C.J,. &lutilto Anoalo B'1ldettci& cmd Gu.u.n-.s Dtwid, JJ., reaerved. their votu. Ill 11.tU/onao D. Yop rmd PAiH,,,,tM HGrVGf'dian CoU•oe, PeUtio· nera-a.ppellaft.t, w. DaaMI JI. SalDMo, in. Ma privat. ~ pad aa Ditwtor of the .BvnkK of Private Scl&ooll, B•~U... G. R. No. L-18920, Decemb.,- H, 1959, Lcd1nidor, J. 1. ADlllNISTRATJVE LAW; PRINCIPLE OF EXHAUSTION OF ADll!INISTRATIVE REll!EDIES; CASE AT BAR.-Petl· tioner-appellant aequired. the Mindanao Academ)r on May 10, 1964.. On December 19, 1969, petitione1· aent a letter to ~e reapondent-appellee reque&till&' that be be furni&Md true eopiea of the reC9l'ds of eaeh of four stUdenta. In answer, re. pondent suggested that said records be secured from the former owners of the academ:v. Petitioner instated upon bis i·e. que1t, threatening to file chargea against respondent ff he faila to furnish the records within 96 hou1·a. Thia second letter was coursed through the Secretary of Public Education. Respondent did not heed the demand. Petitioner brought an action in the Court of First Instance of Manila to compel re• pondent to furnish him with true copies of the transeript; of records of four students. Said court denied the petition on the grounds among othen, that no appeal has been made by petitioner to the Secretary of Education which is a more speedy and ad.equate remedy. Petitionei• appealed. Held.: The court .below correctbr denied the petition for failure of petitionerappellant to exhaust the administrative remedy, moat speedy and adequate, of appealins the refusal of the respondent appel. lee to his Immediate supeiior, the Secretary of Education, In ucordance with the principle of exhau.stion of ad.ministra. tln :remediea. The remedy most appropriate and speedy avail· able to petitipne.r was an appeal to the Secretary of Educ:ation in whose di1eretion the enforcement or non.enforcement of the lnltructions belnir carried out b:v respondent-appellee lies. Scwitricmo Balagta.a, for petitioner-appellant. Aodng Solicitor G87Nnll Guillermo E. ToNQ ill Sol JO'l'fle R. C0qa&is, for reapondent-appellee. DECISION Appeal from the Judament of the Court of First Instance of Manila, denJ'lnc a petition of petitioner-appellant : for the iasaance of a writ of mandam.111 against respondent.appeliee, in his eapa. citi' aa Director of the Bureau of Public School1, to compel him to furnirsh petitioner..appellant with true copiea of the tranacript of recorda of four students of the deluDC.'t Mindanao A.cademJ", 01"0qUleta, lliumiB Occidental. Petitioner-appellant acqnirecl the Mindanao Academy on J1Q 10, 19H. On December 19, 191ii8, he sent a letter to the respondent;. appellee requeeting that he be :fumiahed true eopiea of the records of each of four students. In answer respondent augpst,ed that aaid record.a he secured from the former owners of the academJ". Upon receipt of this denial petitioner insisted upon his request, esplaininc that the records of the former sehool were in a disorder toplJ'-tUJ'Ve7 condition; threatening to file ehargea ap.lnat respondent if he fails to furnish the recordi requested within 96 hours, etc. Thi1 second letter was conned throuch the Secretar:v of Public Education. The reoondent did not heed the demand and threat, explaining that- it is not the poliay of bia Bureau to iuae copies of ita records to schoola, unless the latter have suffered a calamity that haa caused lou of ita recordl; ·that hie office, upon orders of the Secretal'J', is checking records of public school teachers who are claiming adjustment of their aalariea, and the hlsuanee of copies mlrht nullify the work of fnvestigatloni and that until his office baa completed the inveatigat.lon of the records bt question and is convinced that.thq are authentic, no true copies could be 118ed.. Therwpon,. pebltioner broucht the action in the Court of First Instance of Manila. Thi1 court denied the petition on three groun~: (1) that no appeal has been made by petitioner-appellant to the Secretary; of Education, which is a more speedy and ad.equate 'remedy; (2) that there is no apecific legal duty on the part of Mio pondent to issue the copies demanded.; and (8) no evidenee waa nbmitted that the records in question can not be obtained. We hold that the court below correetly denied the petition for failure of Petitioner.appellant to exhaust the administrative remedJ', mo~ speedy and adequate; of appealing thfi refusal of the respondent-appellant to his immediate superior, the Seeretary of Education, In accordance with the prineiple of ezhauation of adminl1trative remedies enunciated by this Court in a great number of cases. (Lamb vs. Phipps, 22 Phil. 466; Miguel vs. Vda. de Reyes, G. R. No.· L4861, July 81, 1968; Wee Poeo vs. Po1adas, 84 Phil. • 640; Luea11 va. Burian, G. R. No. L-'7886, September 28, 196'7; H8l'l'J' Lyona, lne., vs. U. S. A., G. R. No. L-11'786, Sept. 26, 1968) The applleability of the principle above mentioned becomes imperative If we take Into account that the petitioner-appellant had been expreaaly advised by letter of Hspondent-appellee that the Secretary of Education had given 1nsti·uctiona for the ehecking of the records of publie school t.eaehers who are elaimlnl' adjaatmea.t of their salaries in aecordance With the provieione of Republle Act No. 842, which instructions miCht fail on enforeement if reeord1 of teaehers in respondent's office are divulged.. (Petitioner-appellant's brief, pp. '7-8). Under these circumstancea, it is evident that the 1-emedy most appropriate and speedy available to petitioner was an appeal to the Secretacy of Education in whose discretion the enforcement of the tnatruetions being earried. out by re1pondentappellee clearbr lies. In passing, it may be Ulumlnatins to recall the fact, of which we may take judicial notice, th~t upon enactment of Republic Act No. 842, whieh standardized the salarlea of publie sehool t.eaehera accord1ng to their degreea, a mad acramhle fot1 degreu ensued among teaehers, giving rlae to the indiacriminate issuance of diplomas by private schools, which In turn resulted in the "diploma mill" eeandals then subject of investigation. Without considering the other grounds eiven Dy the court a fUO for den71ng t.be petition, we hold that under the partieular cireumstanees of the present ease aaid denial is f1lllJ" justified. Cou.rsiq of the communication or request through the Secretary of Edueation can not be considered as an appeal to this official. The decteion subject of appeal is hereby affirmed, with costs against petitioner.appellant. SO ORDERED. PG$8, O. J.. Bn.t"son.. PadiUIJ, Baa~ Aagelo. COllOl!peioli., J.B.L R-, llhidB........,. and au-. David, JJ., ..... rred. l'abrm.rr 19, 1980 LAWYERS JOURN,U " IV. Gallina Pnu, et al., PIGin.ti/fa-Appall1H, 111. Jo,. 0. ZulHeta, De/endant.Appel"'1&t, G. R. No. L-10374, SepUnW..- 80, 1969, Bnigseon, J, CIVIL LAW; ARTICLE 1606 NEW CIVIL CODE CONS. TRUED. - Article 1606 of the New Civil Code whieh giYes the vendor 15 ntro "tbe richt to repurchase within thirty da)'B from the time final judgment wu rendered in a civil actlon, on the basis that the eon.tract was a true sale with the ri1ht to repurchase'' means that after the courts have decided by a final or execu.tory judplent that the contract was a paoto d• ntro and not 8 mortgage, the vendor may still have the privilece of repu .... chasing within 80 days. DECISION Appeal fl'om an order requiring defendant to permit plaintiffs to repurchase their land. , · Omitting reference to v.:ocedural details, the fa.eta material to the principal iaaue mQ- be briefly stated BB follows: On December 27, 1810 Magtangol P. Pedro and. others (hereafter named plaintiffs) executed a deed whereby for the sum of Pl0,000.00 they sold a parcel of land in Quezon City . (Transfer Certlfic:ate of Title 876ll) to Jose C. Zulueta (hereafter namod defendant), subject to their right to repurchase withi~ one year. As the vendors failed to repurchase, defendant took &teps to consolidate his title to the land in J'anuary 190. This gave rid to a suit (Q.344-) in the Quezon City court of first instance where. •in the vendors (plaintiffs) alleging the contract to be a mortgage dispised as pa~to tU nh, asked for a declaration to t.h&t effect pluS other approp1iate remedies. Defendant asserted the contract was a true pacto tU ntro sale. Such court, after hea1ing, gave judgment for plaintiff&, holdine the eontraet to be a mo1tgage. But on appeal, the Court of Appeals in its decision of May 18, 196&, revened and held the eon.tract to be~ a true pa.oto de ntro sale; however, it added "without prejudice to plaintiffs' (vendor.a) right to 1U&ke the 1'9urehaae in accordance with x x :ic paragraph 8 of A1t. 1606 of the New Civivl Code''. The plaintiff• applied to this Court for review on certiorari, but their petition was denied bJ our reaolution of June 29, 1965. At no time did they move to recon11der. · On August 2, 1956, defendant renewed his efforts to conaolt· date his title bJ filing a petition in the Quezon Court alleging that the plaintiffs had failed to exercise their reserved right to repurchase within thirty da71. But on August 9, 1966, the plain. tiffs opposed the claiDlll, maintaininc that the 80..day period had not Jet elapsed. Thereafter by letter of August 10, 1966, they demanded fl'OID defendant the reconveyance of the, property, offering to repay the price; and upon his refusal, they filed i11 court (in Q· 844.) Aue. 18, 196&, a petition that he be required to reconvey. (Thereaftel•, they judi\rlally depoalted the monq.) This petition was, after hearing, gn.nted. by Hon. Hermogenes Caluag, Judge, by order, the dtspoaitive part of which rea4s as follows: "x x x M1'. Jose Zulueta is hereby ordered to execute a deed of i-eeonveyanee over the parcel of land covered by Tranafer Certifieate of of Title No. 8782 in favor of the petitioners Gavina Perez, et al, within five daya from receipt of a COPJ' of this order and upon compliance therewith he may withdraw the amount of Pl0,000.00 deposited with the court. In the event that Mr. Zulueta fails or refuses to execute the said deed of reconveyanee · within the period above atated, the Clerk of Court is ordered to hold the amount Pl0,000.00 subjeet ~ the diapolition of the said Mr. Zulueta, and the Register of Deeds of Quezon City ia hereby ordered to cancel the annotation of eneumbraneea made and appearing on Transfer Certificate of Title No. 8782." . Hence this appeal by defendant Zulueta. The New Civil Code, Art. 1608, gives the vendor a retro 41tbe right to repurchase within thirtJ days from the time final judgment waa rendered in a civil action, on baala that the eon.tract was a true aale with the right to repurchase." Thia is admi"ttedb" th.a right reaerved to the plaintiffs (Pedro and others) in the clec:iaion of the Court of Appeala. The main issue concerns the counting of such 30.day period. Defendant says it should start from June 24, 19615, when th.la Supreme Court upheld by resolution, the appellate eourt'a decision whereas plaintiffs contend, "the period commenced to run only on July 16, 1956, after the day the resolution of June 2' became final _ . Defendant counters that the resolution of the Supreme Court was a "final judgment'', rendered on June 24, 1958. And be quotes several p1-ovisions of the Rules of Court about "final judgment" being one that dilpoae1 of the i88Ue'I completely was distingu.iahed from interlocutory judgment. We also quotes decisions saying that a judgment is deemed final when it finally dispose.i of the pending action so that nothing more can be done with it in the trial coui-t.( 1) On the contrary, the plaintiff• maintain, final jw:l&ment means a judgment which bu become final or executory, one which i1 eonelusive and binding, and in that light, the judgment (Supreme Court) became final only on JulJ 14, beeauae up to that time a motion to reconsider .,could be entertained. The authorities say that in determining whether a judgment is "final", no hard and fast definition or test can be given since finality depends somewhat' on the purpose for which the judcment is beine conaid~ (Corpus Juris Secundum, Vol. 49, p. 86). "Final" mar mean one thing on an is1ue of conC'lusivenesa or 'binding effect. For the purpoae of appeal, ·final judgment is what herein defendants understands and maintains. On the other hand, a judgment will be de.emed final or executocy "only after expiration of the time allowed by law for appeal therefrom, or, when appeal is perfected, after the judement is upheld in the appellate court." (Corpus Juris Secundum, Vol '9, p. 39.) In the latter sense, we declared in. De los Reyes v. de ·Villa, 48 Phil. 227, that final decision means a decision which baa beerome final and non-appealable. Now then, in what sense did the New Civil Code use "final judgment" in Art. 1606? Aiticlea 1648 and 1657 of the same Code provide that eviction takes place whenever by, •a final judgment" x :ir: x the van.dee is deprived of the whole or of a part of the thing purchased; and the warranty of eviction can not be enforced until "a final judgment" baa been rendered whereby the vendee loses the thine acquired or a pert thereof. Manresa believes and holds that final judgment in those articles imply a judgment that has become final and ezecutory. (Z) And .. senteneia firm.e'' in Spanish "(that is the word in Arts. 14-76 and 1480 of the Civil Code(I)) refer to bi'lid.inl', conclusive judgment.(+) Needle.u to add, if in previous articles .. final judgment" aipify a judgment that ha.a become final, it should have the same meantne in subsequent articles in the same Code. But let us teat defendant's theory a little fUrtber. From his standpoint, if the Quezon court of first instance had declared the contract to be a paoto d6 nh, the so.day period would becin from the promulgation of the judgment there, because such Juda'· ment was "final" (appealable) not interloeutol'J', If 1ueh were the correct view, Art. 1660 ·would place the vendors in the diffi· cult position of having to decide either to appeal within 80 dQ'll or to repurchase. The framers of the Code could not have had such intention. They could not have meant to l'i,ve the, vendor the privilege to repurchase in et:hnge for his right to bring the mat(I) See Insular Gov't v. Roman Catholic Bishop, 17 Phil. '87 Mejia v. Alimorong, 4 Phil. 872; Monteverde v. Jaranilla, 60 Phil. 29'1, ete. (2) Cuando la senteneia quede firme, esto es, cuando x x x no qaepa contra ella reeune alguno ordinario cl o:traordinario (Manreaa, Comments on Art. 1476, C~vil Code, Vol, 10, p. 166-4th Ed. )(I) ·The aourees of Arts. 16'8 and 166"1, New Civil Code. (+) Sentencia FinM. - La sentencia que adquiere la fuerza de las definitiVIUI por no haberae utilizado por las partea liti· gantes recurao alguno contra ella dentro de • loa terminos y pl!D09 legates eoneedidoa el efeeto. (Eneiclopedia Juridica E1paft.ola) LAWYERS. JOURNAL Februal'J 29, 1980 ter before a bi&'her court. The litigant who alleged he wu a mere mortgagor might not agree to the eourt's finding that he was a vendor, and might lnsi1t that he was a mere mortgagor before a higher eourt. Until that tribunal decides a1ainst him, he is not dut)r bound to consider himself a vendor. (S) Again, in eonaonance ,.,·ith his position on the meaning of final judgment,' herein defendant could as well claim that the Court of Appeals' decision was a final judgment (a determination of all to work on the land deapite the termination of the leaae, or aaid in other word.a, whether his beinc a tenant of the lesseE', makes him a tenant of the leelOl' upon the ezpiration of the contract. 2. ID.; ID. - It is elear from Section 9 of Republic Act No. 1199, as amended by SeC'tlon 8 of Republic Act No. 2268 that tenancy relationship is not utingu.iabed by (1) the u.. piratlon. of the contl"act of tfnancy; (2) aale; (8) alienation; the issuea In the action - not interlocutory) and. that the 80-day Peiiod began on llay 14, 1955. Be does not now advance such a. claim. Why! Beeause he knows sueb decision of the Court of Appeals was not final, definitive, and. obliptory. And he eould or ( 4) transfer of legaI poa ... lon of the land. CIVIL LAW; LEASE. - In a contract of lease, the leaaee, for the duration of the contract. aequires legal posl888ion and eontrol of. the. property subjerl of the agreement. not very well argue that the vend.ors were "obliged." to repurel;lase in accordance with such decision, whett pree.lsely they were mort- 4 • gagors - not vendOl"B. AGRICULTURAL TENANCY ACT; EFFECl' OF ENACT· MENT OF REPUBLIC ACT NO; 2263 ON TENURE OF TENANT. - Prior to the enactment of Republic Act No. 2263, amending Republic Act No. 1199, our tenancy legislations, while pn>Yldlng for the tenant's ri&'ht in casea of sale or alienation of the prope1ty, is silent whE'.re there is only a :Presuming then that the lawmaking body intended right and justice to prevail(') we hold that Art. 1606 means; after the courts have. decided. by a final or u:ecutory judgment that the eontraet was a pa:cto de ntt-o ·and not a mortea&e, the vend.or (whose claim as mortgaSor bad definitely been rejected) may still have the privilege of :repurchasinl' within 30-da}'ll. (7) As a matter of fact, American courts hvae held that although "final" is often used. with "judgment" to distinguish il; from in· terlocuto17 judgment, "final judgment" is also used to describe a d.etermin&tlon effective to exclude further proceedings In the same cause by appeal or ~erwise, particularly where time within w.hich to act ia limited to ran "from final judgment.''(') It is, therefore, our opinion on this phase of the litigation, • that the SO.day period Within which . the vendors (plaintiffs) C01;1.ld. exercise their right to repurchase started to ran on July 15, 1956, when the resolution of this Court uphc;ldlng the decision of the Court of Appeals became final. A secondary iHue is raised as to the vendor's efforts to repurchase. Defendant says the letter of August 10, 1955, offering the money wu not sufficient since It was not sincere, inasmuch as the money was only deposited in court in November 11, 1955, a long time after the So-day psriod. Little need be said on this point except to declare that in the circumstancel, the right was exercised In due time, deposit of money being unnecessary, according to Rosales v .Reyea, 25 Phil. 495, and Cruz v. Resurreccion, &8 Of. Gaz. 5198, particularly because defendant bad d.ecilared the time to repurchase had paased, thereby impliedly declining to accept any redemption money,(') Wherefore, the appealed order is affirmed in toto with cost.a against appellant. This t1 subject, however, to ow.• resolution of April '1, 1968, ordering the substitution of plaintiffw.ppelllfS by CorazOn L. Villanueva. Padills Montema1107", Labrtlldor, CORUpcicm, .E7ulnt:is, B~ snd Gutief'res Da.WI, JJ., concurred. v Florntino IO'JIG, JllJllJI. Tshimic, c:md Dtmiingo Jop, Petitioners, 1'8. Ped.f'O PMW;a.. RNpOndbt, G. R. NO. L-18!68, Notiembet" 28, 1959, ~CM"t'fl'G, J. 1. AGRICULTURAL TENANCY ACT; SECTION 9 OF REP· . UBLIC ACT NO. 1199, AS AMENDED BY SECTION 8 OF REPUBLIC ACT NO. 2268 CONS1'RUED. - Under Section 9 of Repul:ilic Act No. 1199, as amended. by Section 8 of Rep. ubllc Aet No. 2268, a tenant of a IE'uee retains the richt (Ii) Ct. Fernandez v. Supltdo, G.R. L&97'1, Feb. 1'1, 1956. (') Art. 10, New Civil Code. . (1) Cf. Al'SOD v. Court of Appeala, G.R. L8601, May 81, 1965. (') Northweatern Wisconsin Electrle Co. v. Pu.blie Servicie Commission, 2488 Wis. 479; 2 N.W. 2nd. 472; Dipowity v. Court of Civil Appeala, 110 Tex. 618; 210 S.W. 1505; 228 S.W. 165; Wolfer v. Hurst, 47 Or. 1156; 80 Pac. 419; 82 Pac. ZO, and. cues cited therein • (') Gonzaga v. Go, 89 Phil. 878. . transfer of legal poaaession of the land. Witl:l the amendment of the Agrfcultaral Tenancy Act (Rep. Aet No. 1199) on June 191 1959, the tenur¢ of the tenant in the land be is cuftivatinl' '\\"88 secured even in casea of transfe1·s of le· gal poaaession. · • Pkoido" C. Rsmos, for petitioners. JSB&UI M. Dtdor, for respondent. DECISION Florentino Joya is the owner of a parcel of land with an a1'88. of 11 hectarta (lot No. 1171), attuated In Sanja M:aJ'Ol', Tanza, Cavite, which had been under lease to one Maximina Bon. dad. for 16 years. For the du1•ation of said. period, the land was tenanttd and. worked on for the leaaee by Pedro Pareja. In April, 1954, upon termination of the lease agreement, the property was returned to the land.owner, with thei lessee recommending that the same be leased to Pareja, The aaid tenant • and the landowner, however, failed to agree on the terms under which the former «iuld work on the land, speelfieslly on the matt.er of l'entaJ, as Joya demanded 120 cavanes as annual rental therefor: Notwithatandine such lack of undE'.ratandinc between them, Pareja coutinued on his cultivatioh of the prc.perty. On May .24, 1954, the tenant tiled with the Court of In. duatrial Rela:tlons (before the creation of the Court of Agrarian Relations) Tenancy Case No. 5281-R against Florentino Joya for the p111-pose of securing a i-eductlon of the "rental allegedly being Imposed. upon him by the respondent. The landowner i-esiated the complaint dlscilaiming that Pa:rt.ja •had. ever been hia tenant. Two days thereafter or on May 28, Florentino Joya leased the land to Domingo Joya at an annual rent of 120 eavanea. As ihe aforesaid lessee found Pareja already working on the Jnnd, the former agi-eed to allow him (Pareja) to continue with his cultivation on condition that they would equally share its produce afv.1• deducting the rental for the land. In view of this development, Pareja moved. .for the diamiaaal of hia complaint against the landowner, then pend.Ing in the Court of Industrial Relations, on the ground. that the parties thttein had. already reached. an agreement on the matter tn eontrovera:v. One year later, or on April 10, 1956, Florentino Joya Nnewed. the lease In favor of Dominp .Toya but included as co-leueo one Juan Tahlmici. The rent was reduetd. to 105 cavanes a year. Pareja, with whom Domingo had. worked during the previous 1ear, refused to surrender the land to •rahimic. 'l'he1·eupon, Flo. n-ntlno filed with the Justice of the Peace Court of Tama, Ca· vlte, a complaint for usurpation against Pareja who, consequently, waa arrested and stayed in jail for a. week. When finally released on bail, Pareja filed a countff.chargei with the Office ol the Provineial Fiscal, against Florentino Joya, Juan Tahimic, and Domingo Joya, for allege;d violation of" Republic Act 1199. However, threatmed to be tmp1i1oned again or fined in the usurp· February 29, 1980 LAWYERS JOURNAL 48 ation cue If he did not desist and surrender the land, he withdrew bis ·complaint manifesting that he wu .-rrendering the PJ'OPf'rly to its owner but "leaving to the Court of Industrial Belation1 or Agrarian Court the determination of whatever right he may have in the 1aid land." Thereafter, at the inatance of J'lorentino Joya, the criminal ease- for usurpation was also disml•ed. On Januaey 31, 1966, Pareja filed in the Court of Agrarian Relations a complaint againat Florentino Jora and Juan Tahimie for alleged violation of Republic Act 1199 (Tenney Case No. CAR-6, Cavite), consistinl' of his allegedly unlawful f'jec\.. ment from the land he waa working on for 16 years and the appointmenti by Florentino Joya of his co-defendant Juan Tahimie as tenant in his (Pareja's) stead; of the lanclowntr's filin1 a eriniinal a'*1on. whm he refused to vacate the property and making it a C011.tention for its dismi11al his (Pareja's) surrender of the same. And eontf'nding that he unwilllngl)r vacated the land for fear of being apin indicted in court, Pareja prayed for his reinstatement to the i8ndholding; paJ!Dent to him of his share of the· crops fo1· the agricultural year 1965-68 which be failed to recetn; for damages. and attorney'• fees. In their answer with counterclaim, defendants Florentino and Jun denied the aistenee of ttnaney i'elationabip betvfee plain· tiff and defendant Floreii.tino; and claimed that theo complaint stated no cause of action and that the case had already been passed upon by competent authoritins (apparently referring" - to the dismissal by the Court of Industrial Rtlationa and the Pro· .Yincial Flscal's Offiee of the previoUs complainte of Pareja ag.. ainat the same defencian'ta) Domingo Joya also filed an answer In intervention praying for. the recognition of his and Tablmle'a auperlor right to work on and cultivate the land. After the. bearing, the Court rendered judgment holding that upon termination of the civil lease in favor of Maximina Bon. dad, Pedro Paiteja, the lesaee's 'ena:rit, autmqatddall'f 1ledame the tenan't of the landowner, pursuant to Section 26-4 of A~ 4064; that said tenant, on the other hand, in agreeing to &hare equally with DomtllfO Joya the produce of the land for the agricultural ye&l' 1964-56 in effect waived his right over an undetermined 1/2 of the landholding; that the subsequent eontract of lease tntered into between the landowner and. Domineo Joga and Juan Tahbnie as lessee ahould not prejadiee thEI right of Pareja to work on the same land and, aC!cordin11J', was decla1'8d valid only insofar as that portion .gifft\ up by the latter in favor of Domingo Jays. was concerned. Consequently, Peid:M Panda waa o~d reinstated to 1/9 of the 11-hectare landholding, while Domingo Jaya and Juan Tahlmie were recogniaed ae joint tenants ·over the other half. As tht rental f01• the lease of the land was fixed at &3.'16 cavanea per agricultural year after taking int.o consideration its nature and productivity, the court also directecl Florentino Joya to return to plaintiff Pareja and intervenor Domingo Joyll 21.20 eavanea of palay or their Valut>, which were overpaid to him (the landowner) for the ag'lit'Ultural year 196U6; and to Dominp Joya and Juan Tahimie 66 cavanea or their corresponding value which were overpaid to him for the ye&l'8 1966-66 and 1966.tii'l. Thi!. court, howlever. finding that plaintiff's failure to continue on the cultivation of the land and its return to the owner could not be hnputed to the latter, exonerated Florentino Joya from the charge of violation of Republic Act: 1199. Not satisfied with this duision, therein defendants and intervenor filed. this petition for review. Admittedl)r, the respondent-"benant cultivated the land for the lusee for 16 years ·or for the entire duration of the lease agreemf"nt. There is no controteray either that tenancy relationship existed between Maximina Bondad, the leuee, and Pareja, the tenant. The queation now interposed in this petition is whether tbt tenant of a lessee retains the right to work on the land despite the termination of the lease, or said iD other word&, whether his being a tenant of the leaaee makes him, upon the txpiratlon of the contract, a tenant of the lessor. The question thus presented must be answered in the affirmatin not so much because of Act 406' relied upon by the Acrariaa Court, but pursuant to Section 9 of :Republic Act 1199, u ammukd by Seetion 3 of Republic Act 2183. which reads in pa.rt: "SEC. 9. S•t1e7'fDU:fl of .R.latiou.-Tbe tenancy relationship is extinguished b7 the voluntary surrender or ahandonmenit of the land by, or the death or incapacity of, t.be tenant: x x x. The u:plration of the period of ihe contract as fiud. by the parties, or the sale, alienation or transfer of kgml poa•• sion. of the lM&d doa -not of itHlf etinguiaA tAs nlationakip. In tAs lllHer oan, the pnrchuer or Mufst'Ss altall .,BK,.. ti&. t'iglt.ta and obligatiou of tAe former lllndlt.old'er in relation to tAe tnant. In case of death of the landhold· er, his heir or heirs shall likewise assume his rights and obltgatiODL" (Emphasis supplied.) It is clear from the foregoing that tenancy relationship 11 not extinguished b,- (1) the expiration of the contract (of tenancy); (2) sale; (3) alienation; or (4) transfer of legal PM· seuion of the land. • In a contract of lease, the lessee, for theo duration of th9 contract, acquires legal possession and control of the property aubjeet of the agreement.• The l'f"tarn by the leseee of the pro-perty to the l81sor, upon expii'ation of the lease contract. natur. ally involves acaJn a transfer of possession from one lawful holder to anotht1•. But It may be asked, IS this "transfer of pol· ueuion included in or comprehended by the aforequoted Section 9 of Republic Act 1199, as amended? Prior to the enactmtnt of Republic Act 2263, amending Rep. ublie Act 1199, our tenancy !ecislations, while providing for the tenant's rie'ht in casea of sale of alienation of the propertJ', is allent where there is only a transfer of legal poseesaton. of the land. With the amendment of the Agricultural TenaDCJ' Act (Rep. Act 1199) on June 19, 1969, the tenure of the tenant in the land he Is cultivating was secured even. In cases of t1·ansfers of legal possession. Petitioner-landowner, howt.ver, claims that to hold that the leseee's tenant, with whom he hnd no dealing whateoever, automatically beeomea his tenant upon the uturn of the pro. perty to him would conatltute a restraint on hla right to enter into contract and deprive him of his lil~erty (to contraet) and property without due proce11 of law. · The same contention was raised during·· the deliberation& of the then SfGl.ate Bill No.· 119, but .Con1res1, aeclded. to Implement it& policy and objective in adopting the Agl'icv:ltural Tenanq Law and paeef'd the hill in its preaent form. The following is quot:e4 from the Congreulonal Record: "SENATOR PRIMICIAS. On the severance of relatlonshipe of tenant and landowner, it seems that there is an intention on the part of You1· Honor to ammd Seetlon 9 of the Aet eo as to include the transfer of legal pos&e88ion of land in one or two ease& which do not extinguish the relationship. x x x .. "SENATOR PELAEZ. I would say that thia afternoon, in the Conunlttee on Rf!'liaion of Laws, we were cOnsidering amendments to the effect that tba present tenants must have the priority r:lght, and. I think we should give priorit)r to those ,ttnants who are thel"e and that anr t;i~n•fw of lands should not affect them the least. • x x "SENATOR PRIMICIAS. x x x. Doea Your Honor think that the landowner ta not· entitled to transfer the lease to another person awn if the price ie better? "SENATOR PELAEZ. Under the present law. he can· not do it. 11SENATOR PRIMICIAS. Would that not constitute a deprivation of ptoperty without due p~ of law? • Tolentino v. Gonzalea Sy Chiam, 60 Phil. 658. " . LA WYERS JOURNkL February 19, 1960 "SENATOR PELAEZ. It is deprivatloJ( of property without due prode8I of ·law. It la in the pruent law. But we ·.·have to :remember hel"e .OCial values and huinan valUU: acAimt material valua. Preeiaely, the agricultural tenailcy act remE"died an aiatlng nil because before the qricultaral tenanci' act prOvlded for aecurlt:,. ·of theae poor tenants, they 'were paahed out of the land by the landlords. x x x." (Senate Congreaalonal Record, Vol. I, No. H, April 21, 19&8, p. 905-906.) It ta our eonsidered· judgment, since the return by the lessee ~ the leased propert1 to the leuor upon the expiration of the -~tna:t·involfta -also· adranafei·.·of legal posaeuion, and taldnir into account the manifest intent of the lawmaking body in amending the law, i.e., to· provide the tenant with security of tenure in all cases of transfer· of legal pouession, that the instant ease falls · within and is governed bJi' the proTisions of Section 9 of RepubHe Aet 1199, as amended by Republic Aet No. 2268.1 The trrmfnation of the lease, therefore, did not divest the tenant of the right to remain and eoD.tinue on his cultivation of the land. Furthermore, should any doubt exist as to the appltcablllty of the afoHmenttolied pro\rision of law to the ease at bar, auCh doo.bt must be resolved in favor of the te_nant.J · Petitioner landowner likewise assalls the legatity of the judg: ment of the court a quo prescn"btng the rental that must be ·paid · by the tenants, tt bring claimed that sueh question was never raised in the pleadings filed in said court. Thia ia not exaetl,- the case, because it must be remembeN'd that the V1•in reasoD for. the refusal of the landowner to let petition.a continue Jn the cultivation of the landholdin.ir in 1954 wu precisely the · qutiation of the rental to. be paid, the tf".nant claiminl' that the 120 cavanes being asked by the landownet· waa exceuf-.e. This, therefore, is a matter of disputf' between the parties and the action taken by the Agrarian Court is sanctioned by Section 11 of· Republic Act No. 126'7 which provides: SEC. 11. C~ of Order M' Decision. - In lasufq an order or decision, the Court shall not be restricted to the specific relirf claimed or demands made by the parties 'to the dispute, but may include in the order or decision any matter or determination which lll8J' be deemed necessary and expedient for the purpose of settlinl' the dispute or of flt'e· wnting further tliaputu, provided that said matter for determinaition baa been established . by competent evidence during the htaring. Contrary to· petitioners' contention that no proof was a_dduced durinc the trial to suppol't the lower court's finding tha.t the landholdinc baa an average annual yield of 216 cavanes, we have the testimony of Florentino Joya himself that "the land normally prodUCf'a more than 300 cavanes pe1· yea1·" (pp. 20'7 and 225, Records). There ta al10 the statement of Pareja that in 19154·55, he harvest.ed 188 eavanes, in 'spite of poor crop. (p, ,.5, Record.~) Hence, we find no l'cason to disturb the finding of fact of the lower court. Petitioners also allege tha't the tenant voluntarily surrendered the property to the landowner, as evld~need by an affidavit ezeeuted by Pareja on July 16, 1966 and sub~6ed befo1-e the Jua. tlce of the Peace of Tanza, Cavite, tha translation of which reads: "I, PEDRO PAREJA, of lepl qe, and residing in the munlcipality of Tanza, -Cavite, under oath, state the follow. inc: "That in accordance with what I have declared befol't' the Provincial· Fiscal of Cavite durinc the investigation (July 6, 1966), I will not interfere with or eontinue ·the eulti· v&tton· in the land of Kr: Florentino Joya In Balite, Tanza, Cavite, Lot No. 11'71, and which I am voluntarily returning to him, nevertheless I am leaving to the c.I.R. or A1'1'8riaD it Sea Sedtion 12, Republic Act 2268, which pt'O't'idea: 11SEC. 22. The provisions of thi1 A~ shall be applie1ble tO ~l cases pending in any Court at the time of . the approval of· this Act." . · l SectlOn 58, Republic Act ll99, as amended. "Petitioner's fe&1• - after Ilia incarceration waa ordered. b,- the Caart the det.erminatfon of wlurteftr right I mQ' have In said land. "IN WITNESS WHEREOF,_ I herebv sign this document, In ihe lluniicpal building· of Tama, Ca'rite. this 18th dQ' of luly, 1955. (Sgd.)_ PEDRO PARE.JA" · This -.tatement notwithatandill&', the lower court found that Justice of the Peace - was auch that his freedom of choiee waa impaired; or at Ieut: reatrict8d. UndE'4" such circumstaneea, he was nOt acting voluntarily." Thia· conelusion is fully supported by the record of the cue. The explanation of the tenant is sufficiently borne out by the c1M.~stimce8 attending the eXecutlon of the document. At the time he made the statement both in the office of. the Pl'OVincial Fiscal and the Justice of the Peaae of Tanu (whO ordered his previo1is arreat), petltfonei• Florentina Joya was in attendance. The criminal acion filed b,- Florentino against him was then pending in the justice of the peace coul't. The fact that imm.e. diately after the execution of· the . affidavit the landowner mewed for the dlaminal of the aforementioned criminal one corroborates Pareja'& testimony that he had to do as he did out \of feat• of further harra88JDent. Significantly too, it· may be obserTed from a i'eBding ol the document that the affiant did n.,i turn ~ thei propert,. to ·the owner unconditionally. On the contrary, he made a re, eenation of his right to secure from the proper court a judicial declaration of whatevn interest he may baVt' in the land. This iii.deed Cmitradicts the s1ipposed 1'voluntarlness" of the "llenant'• aet in giving up the iand. . With resitect to the charge that a portion of the land was utilized by the tenant as a ,.tiJapla" fish pond, we agree with the lower court that .there is no evidenCe that it resulted in material injU17 to the land (Sec. 61, Rep. Act 1199). The uncontradieted testimony is that the fishpond was made on requiff· ment of the Bureau of Agricultural Extension that every farmer in that· vicinity should haw a small ·fishpond, and that this particular ',filbpond was on the portion ('1balot") not used for plant;ng - (pp. 81·82, Record.) -WHEREFORE, finding no reason to review the- decision appealed : from, the same is hereby affirmed, with costs aarainst petitioner Florentino Joya. SO ORDERED. ' . Pa.t'as, C. J., BengllO'A, Padilla., Montemoyor, Bautiata. Attge. lu, Lalwad'or, Endenc{G. BOll"r"M"CI and GuticitTfii: .Dcwid JJ., eoncorffil. Concepcion, J., on leave, took no part. VI J'lf.OAI. Palacios, P.titionm.Al'f'eHaN, vi. Mario C•tim6no P,,,. kcioa, Oppositor-Appellee, G. R. No. L-1280'1, DIO&m6er 2', 1969, · Bautista. Angelo J. J. CIVIL LAW; WILLS; PROBATE OF WILL DURING LIFETIME OF TESTATOR;· CASE AT BAR. - Pet;-euppeJ. lant executed his last will an4 testament on June 26, 1846, and on May 29, 19158 filed a petition for it.a approval before the Court of First lnltance. In said will, he imtituted •• his aOJe heirs his natural' children. Antonio C. Palacios and Andrea c. · PalaciOs. On June 21, 1918, oppollit.or.appellee filed an opPoaitfon to the probate Of the will. alatming that 1he 11 the acknowledged natural daughter of petitioner but that she wH ignol.'ed fn said wlll, thus impairing her legitime. On JulJ' 8, 19&8, the Court i.aaued an order admittinc the will to probate. ·Jlowenr the Court Ht a dat.e for the hearing of the oppoti· tion reiat1ve to the intrinalc vaUditJ' of tha will. After· hearing, the Court ilaued another order deatarlng oppositor to be the natural child of petitioner and annulled the will Insofar as it Impairs her legitime. Renee this appeal of ·ll'ebruary 99, 1900 LAWYERS JOURNAL petitioner. Held: The trial court erred in entertaining tbe oppoaition and in annulling the po1tion of the will whieh allegedly impair• the legitime of the oppoaitor on the ground that she la an acknowledged natural daughter of the testator. This is an extraneous matter whieh should be threshed out in a separate action. 2. IDi ID; ID; ID. - In the case at bar, auch opposition cannot be entertained in thia proceeding because its only purpoae is to determine if the will baa been executed in accordanee with law, much leas if the purpose of the oppoaition is to abow that the oppoaitor ia an acknowledged natural child who allegedlr has .been ignored in the will for auch issue cannot be raised here but in a separate action. This is so when the testator, as in the ease at bar, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after hia death. 8. ID; ID; WILL PROBATE DURING LIFETIME OF TES· TATOR REVOCABLE. - Af)<tr a will has been probated during the lifetime of a testator, it does not neceasarily mean that be cannot alter or reTOke the same before hia death. Should he make a new will, it would also be allowable on his petition, and if he ahould die before he bas ha<l ehance to present such petition, the ordinar7 probate proeeedinp after the teatator'a death wonld be in order (Report of the Code Commission, pp. 68-6'). The reaaon is that the right& to the auceeasion are tranamitted from the moment of the death: of tba deeedent. Auguto Fra.nciaao Ii Vit'tm• R•yea Villtwioeuio, for petitio-ner.appellant. Em-iqu, A. Amador a: Lt&arHno C. Alano, for QPpositor-appellee. DECISION Juan Palaeioa executed. his last will and testament on June 26, 1946 and aniline himself of the proviaions of the new Civil Code, he filed on May 28, 1968 before the Court of First Instance of Bat.atll'as a petitibn for ita approval. In said will, he instituted a1 his aole heirs his natural children Antonio C. Palaeioa: and Andrea C. Palacios. On June 21, 1966, Maria Catimbang filed an opposition, to the probate of the will alleging that ahe ia the acknowledged. natural daucbter · of petitioner but that ahe was completely ignored in . said will thus impairing her le&'itime. After the pre,sentation of petltioner'1 evidence relative to the esaential requiaitea and formalitiea provided. by law for the valtditJ of a will; the court on Jul7 8, 1968 i11ued an order admitting the wlll to probate. The eourt, however, set a date for the hearin1 of the opposition relative to the intrinsic validity of the will and, after proper hearing concerning this incident. the court iasued another order def!larinc. oppoaitor to be the natural ahild of pett. tloner and annulling the will inaofar as it impairs her legitim.e, with coata against petitioner. From this laat order, petitioner g&Ya notice of his intention to appeal directl:r to the Sup1"e1De Cou1t, •rut accordingly, the record was elevated to this Court. It should be noted that petitioner instituted the present proceeding in order to Pcure the probate of his will aniling himself of the pr0Ylsion1 of Article 688, paragraph 2, of the new Civil Code. whieh perm.it a testator to petition the proper court during bis lifetime for the aUowanee of hia will, but to such petition one Maria Catimbanc filed an opposition 8lleainc that she ia the acknowledged natural daughter of petitioner but that she waa completely ignored in the will thus impalrinc her legitime. In other word1, Maria Catimbang does not object to the probate of the will inaofar aa its due ezecution ia concerned or on the 1rourul that it has not complied with the formalities preaeribed. !by lawi rather ahe objects to Its intrinsic valid.ii,: or to the legality of the pro. •isiona of the will. We hold that aach oppoaition cannot be entertained in thia proceeding because it.a onl:r purpose is merel7 to de6ermine if the will ha1 been executed in accordance with the requirementl of the _law, much Ina if the purpose of the oppoaition ia to ahow that the oppositor i1 an acknowledged natural child who allegedl.J- has been ignored in the will for sueh issue cannot beo raiaed here but in a separate action. This is qpeciall:r so when the testator. 8S in the present ease, fa still alive and bas merely filed a petition for the allowance of hia will leavia.g the effects thereof after hi• death. This is in line with our rulinl' ·in llontaiiano .,.. Sueaa, 1' Phil., 6'18, wherein we said: "The authentication of the will decides no other queatlon than aueh aa tGueh upon the capaeit7 of the testator and the eomplianee with those requisites or solemnities which the law preaeribes for the validit.7 of a will. It does not detlenn.ine nor even by implication pi-ejudge the Talidit)" or effi· eiency of the provisionai that may be impugned 8S being vieiou1 or null, notwithstanding its authentication. The ciUution relating to theae points remain entirel7 unaffected, arul mar be raised even after the will has been authenticated." On the other hand, "after a will has been probated durinl' the lifetime of a testator it does not necesaaril7 mean that he cannot alter or ruoke the same before his death. Sh011ld he make a new will,- it would also he allowable on his petition, and if be should die before he had a chance to present such petition, the ordinary probate proceedings after the teatator'1 death would be in order" (Report of the Code Commission, pp. 158-64). The rea8on for this comment ia that the right& to the succession are tl"an• mitted from the moment of the death of the deC'ldent (Article '1'17, new Ci'ril Code). It is elear that the trial court m:red in entertaining the opposition and in annulling the portion of the will which allegedlf impairs the legitime of the oppoaitor on the eround that, as it has :found, ahe is an acknowledged natural daughter of the t;ut. ator. This is an extraneous matter which should be threshed 011t in 8 separate action. "Wherefore, the order appealed from ia set aside, without pro. nouncement as to coat. Pfllf'fH, C.J., Bmgaoa, Padilla, Labrador, CoftUflOion, ~ Btlh"J"Wl'O. Gftd. Gutinn• .Drwid, JJ., concurred. VII P.aple of tlM Ph.iUppin.ea, PlaintVf-Jlppellant, va. Bft'Ro.nlo Borja., st aL, DeJ.-.ta.Appsllna, G.R. No. L-14827, Jo.nua'r"jJ 30, 1980, Ba"'81'G, J. 1. CRIMINAL PROCEDURE; STATE WITNESS; SECTION 9 RULE 116 OF RULES OF COURT CONSTRUED. - Under Section 9, Rule 116 of the Rules of Court, it la well settled that the discharge or exclusion of a co-accused from the information, in order that he may be utilised as a prosecution witness, is a matter of sound di1c1:etion with the trial court, to be exerclaed by it upon the conditions therein set forth. It should be availed of onl:r when there is absolute necualty for the testimony of the accused whoae discharge ia requested, as when ·his te8timon7 would aimpl7 corroborate or otherwise strengthen the evidence of the pro11e1Ntion. 2. CRIMINAL LAWi MOTIVE. - Proof of a motive is not absolutely indispensable or necessary to establish the commis. aion of a crime. Actina Solicitor Gmeral GNiUonno E. T~• and SoliaitM' Pa.ci/ico P. de Cutn, for the plaintiff-appellant. Alabs Custodio, J'11mBf'O and No.110/l"f'0 & Natltlll't"O, ·for the de· fendant;s.appelleea. DECISION Bernardo Borja, Floro Tandang, Joaquin Odog, Pedro Bapo, Ped.ring Tagonon, alias Empeor1 and Teofilo Bag-ao, were charged in the Court of First Instance of Sarigao • (in Crim. Caae No. 2228), with the Cl"ime of ·murder, for bavinc allepd.ly ldlled 46 LAWYERS JOURNAL February 29, 1960 llaauel Ibanez on January 13, 1948, in the municipality of lilalnit, provinee of Surlgao, with evident premeditation and treaehl!l'J', and with abuae of superior ltrength and· weapons. On April 8, 19&7, the accused, claiminc that the execution of the deeeaeed for which they are charged, wu done in furtherance of the guerilla movement. filed a petition for guerilla amnestr, pursuant to Guerrilla Amnesty Proelamation No. B of the President. On May 2, 1967, while petition was pending, the Provincial Fiscal moved to ezclude from the information the accused Floro Tandang and Joaquin Odog to be utilized as state witnesses. The other accused opposed the motion of the Provincial Fis. cal, and on June 29, 19&7, the erourt ilsued an order of the foltowina tenor: "ORDER "The Ffscal in his motion dated May 3, 19&7 (should be Kay 2, 1967), which was considered submitted that in view of the fact that there was no date set for the same, 'asked for the •ischarge of. the twO ucused, namely Floro Tandang and Joaquin Odog, alleging the fact that there la absolute neeeuity for the testimony of the defendants whose discharge is requested; that there is no other direct evidence available for the proper prosecution of the offense eommttied except the testimony of said defendants; that the teatbnony of aatd defendants can be substantially corroborated in its material points; that said aecused do not appear to be the most guilty; and that said acrcused have not at any time been convicted of any offense involving moral turpitude. The rest of the acct11ed opposed thta 1notion alleging that there ia no absolute necessity for the releaae of the said defendant.s and that It 1 1 not true that there is no other direct evidence of the proaecution except tbe testimonies of the iatd defendanta becauae in the written statements of two prosecution witnesses· in the - record, namely: Leonardo Ybaiiez and Eduardo Baloran, show that they were qewitnesses to the killing and that said wjtnesses stated that thq heard one of the aeeused, Bernardo Borja, order hll eo.aecused to kill the deceaaed, and conspiracy can be inferred from the aets of the accused prior, during and after the offense waa committed and that fact can be substantially corrol>orated by the fact that could be inferred from the testimonies of the other witnesses. The Fiscal and Private Pro~tor lnaisted that they have no direct proof to establish the motive of the commission of the act and auch proof 11 essential in the consideration of this case before the Amnesty Commluion. "The Court after consideration of the matter believes and coiicludes that the two essential element.a for the dilC'harge of these accuaed, namely: that there is absolute nec:easiW and that there· are no other direct evidence available to prove the :!.e:'sb!' n::ve~:t naC:d, n::::;, i: :• ~:°~~ i. clear. Under these circumstances, there ezists no justification to .crant the motion to exclude the two 8.ceused. and that point eoncerning the proof of motive which Ls claimed is essentially in. favor of the accused ean be brought again when this case shall be submitted to said Amnesty Commission for eons· ideratlon.. "WHEREFORE, the motion to ezclude the accused Floro Tand~nc and Joaquin Odoc, is hereby denied. Having now resolved this point which the Amnesty Commission believed should be dlapoaed of by this Court before said Commission could take jurisdiction over the case, the record of the case may now be transmitted and forwarded to the Commission for its hearing on the merits and final determination of the ..... ".SO ORDERED." The Provincial Fiscal filed a motion for reconsideration, whieb •·•s denied. by the court as follows: . "ORDER "The motion for reconaide1•ation is hereby denied, it ap. pearinc that the Rules "of Court "doe& not state as one Of the crounda · for ezcluding One accused to· prove peraonail IDOtin. that matter which is claimed to be necessary when the CBM comes before the Amensty Commission for deciaion, and before that time comes, this Court cannot take into account the exclusion of a co.aceuaed to establish motive,, because tbia Court believea that ll&id Amnesty Commission is clothed with all the powers to dispose (of) the principal question, as we11 as the question of motive involved in the case. "WHEREFORE, the said .Dotion. I• hereby denied." "SO ORDERED." From the foregoing orden, the proaec:ution. appealed to the Courts of Appeals, but aaid court, in its ruolution of July 14, 1968, eeitified the ca1e to us, as it involving only questions of law. The prosecution in thia Instance, claim• that the lower eourt erred In denying it.a motion to exclude from the information the aecused Floro Andanc and Joaquin. Odog, to be utilized as witnesaes for the Government. We do not acres with the prosecution. Section 9, Rule 11& of the Rules of Court provides: "SEC. 9. IJUCl&arge of" one of e8W111l U/mdanta to II• tuittiaa for ·tM prosecution.. - ·When two or more person are charged with the commiulon. of a certain of.fenae, tM comp.tent OIJll£rl, at any tfmB before they hia.ve entered upon their defense, may direct a.1&11 of t"6m. to h diaoAa'f'g-4 with the latter's consent that be may be a witne11 for the pvern.ment wAm in. the Jtulgmnt of tAe oout"f: 11 (a) Tbe1-e ls abaolute neceuity for the teatfmon:v of . the defendant whose diacharp 11 requeated; , • 11 (b) There is no other direct fV!idence .nTmlallle for the proper prosecution of the offense committed, except tha testimony of said defendant; "(c) The teatimo~y of aaid defendant can be subatan. tlally corroborated in its material points; "(d) Said defendant doea not appear to be the moat guilty; "(•) Said defendant has not at any time been conTlcted of any offense involving moral turpitude." (Emphasis supplied.) Under ~· nbove-quot.ed provision of the Rules of Court, it is well..settled that the discharge or e.x.cluaion of a co-accused from the information, in order that be may be· utilised as a prosecution witneu, is a matter of sound discretion with the trial court (U.S. v. Abamado, 37 PhiL 668; Peopli!t v. lbaft.ez:, G. R. No. L-&242, prom. April 20, 1958,) ( •) to be exercised by it upon the conditions therein set forth. The expedient should be availed. of, only when there is a.6aolute 'ReceaaiQJ for the teatim0D7 of the accused whose discharp is requested, as when he alone baa knowledp of the crime, and not when hb testimony would simply corroborate or otherwiae strengthen the evidence In the hands of the proaeea tion. (2 Moran, Comments on the Rules. of Court (1957 Ed.] 827.) In the "case of People v. Ibaftez, supra, it waa held that - "The court's is the exclusive responsibility to see that the conditiorul p1~scribed by ihe rule exist. The l'll1e is eom.pleteb •ilent as to any authority of the proseeution in the premises, although autbOl"l.ty may ibe inherent in the office ~ the pro.secutinc attomq to propoae. 8eC'tion 2 of A"ct No. 2709 from which the preceding rule was taken, was en.acted avowedly to curtail miscarriage of justice, before too common, throuch the abuse of the power to ask for the diacharge of one or more defendants. 'Absolute necessity of the testimony of the defendant whose discharge is requested,' among other things, must now be shown if the dlscharp Is to be allowed, and, u above stated, it is the court upon which the power to determine the necessity Is lodged." · The trial eourt, In the Inst.ant ca.se, properly denied the pro. (•) See also U.S. v. De Guzman, 80 Phil." 418; U.S. v. Bonate, 40 Phi?. 9&8; People v. Bautiata, 49 Phil. 889; and People v. Pal. coto, et al; G.R. No. L-8458, J.-nuaey 30, 19&6. February 29, 1980 LAWYERS JOURNA):. MOUtioD'• motion to uelude from the information the aeewied. Tandane and Odos, after being convinced that there was no absolute nec:euity for their teatlmonT, it appearing tha"&: the killing of the deceued Manuel Ibaiia eould be established bf- other available dlreot evidence, namely, the testimony of' prosecution. wltneues Leonardo Ybaiiez and Eduardo Baloran, who were eyewitneuea to the said kiting, as shown by their written statements on record. As to the prosecution'• claim that the exclusion of the &e· cuaed Tanclang and Odos from the imformation is neceuary to prove the penonal motive or reason of their eo-aeau.sed in the ldlltnc of said deceased, it may be stated. that proof of motive is not absolutely indispensable or neeessary to Utabli•h the ~ mtasion of a erime. (8 Moran, Comments on the Rules of Court [1962 ·Ed.] 880-681; U.S. ·v. Rieafort, 1 1'18; U.S. v. Balaiori, et al., 18 Phil 678; · U S. T. Valdes, et aL, 80 Phil. 298.) It is true that motive is essential in ea.sea falling under the Amnesty Proelamation, but as stated by the trial eourt, the exeblalon of said aeeused for .the purpose of establlahinc peraonal motive of their eo-aceused is a matter whieh may be properly t.aken up when the ease is submitted. to the Amnesty CommlssiOn for reaonaicleration, pursuant to the provisions of Proclamation No. 8,(') dated September '1, 1948 (Guel'illa Ainnesty Pn>clamation) and Administrative Order No. 11(2) of Ootober 2, 1946 wbieh authorizes the Guerilla Amnesty Commission to· 1'e.:r:amine the facts and eireumataneU surrounding eaeh eas8 and · if 1leoe.ss&l'J' or requested by either or both of the intereate.d parties. eonduet summary hearings of witnesses both for the complainant.a ·and the accused..'' ' WHEREFORE, ffndi~1. no reversible error in the ~rdet' appealed from, ihe same is hereby affirmed., without pronouncement u to eoats. . - SO ORDERED. Pa.rat1. CJ. Be1t11zon, Padilla, .Bciutista. Angelo, Labrador, CGJLcepoion., J.B.L. Beyea, Ba.n-t1m and GuUsrrez David, JJ., eoneu.rred. VIII Adri.a.•o Valdu, Plointif/-Appellee va. Rodrigo Onmen, lfl'IAfto M~, Procopio Sanffago, et al., Defendant&-Appalla'!'ta, G. R. No. L-18&86, la""""'11 29, 1960, liPITet"at ;J, L. APPEAL;. PERFECTION OF APPEAL FROM INFERIOR COURTS; SECTION 2 RULE 40 RULES OF COURT ·co NS. TRUED. - Under the provision of Seetion 2 Rule 40 of the Rulea of Court, in order to perfect an appeal from the judg. nidt of the Justice of the Peaee or Municipal Court. an appellant must within 16 days from n¢1ee of the judgment, (1) file with the justiee of the peace or municipal judge a nottee of appeal, (2) deliver a eertifieate of the munieipal trea• surft. or of t.be Clerk of Court of First Instance in chartered eities, showinc that he baa deposited the appellate court doeket fes, and (3) give a bond. 2. ID.; ID.; EFFECT OF FAILURE TO· PERFECT APPEAL WITHIN PRESCRIBED PERIOD. - The rule m well eettled that the failure" to perfect ail appeal from a judgment of a justice of the peace eourt within the period allowed by law bars the appeal and that if a party doea not perfeet his appeal within the time Preecribecl by raw, the appellate eourt cannot acquire jurisdietton and, th«efore, oomplian~ with iatd ·requirement is jurisdictional. 3. ID.; PROVISIONS OF RULES OF COURT WHICH CANNOT BE THE SUBJECT OF AGREEMENTS BETWEEN COURT AND COUNSEL. - The proviaiona of the Rules of Court, especially thoae presC'riblnc the period ,within which eer(') 42 O.G~ 20'12 (Z) 42 O.G. 2860; see also Adm. Order No. 17 dated Nov. 16, 1946 (42 0.G.2726), and Adm. Order No. 41, dated July 6, 1964 (60 O.G. 2928), tain aet.a mmt be done, or certain proeeediDp taken, whicla are tntendecl. to prevent needleaa delap and promote the apeedJ · diaeharp of judieial business, can. hardly be the subjeet of agreement& or stipulations between a court and eounael Strict. not: sabatantlal, eompUanee therewith is required. Antonio Rodrigues ~ Celao Zo'-tG. J-r. for plaintiff-appellee. 7'80/ilo A. Leonin, for defendants-appellants. DECISION Thia is an appeal taken by defendants from the order of th• Court of First Instance. of Isabel&, dilllllsslng the appeal they brought to said eourt from the judgment of the Justiee of the Peaee Court of Rmas, Isabel&, in Civil Case No. 824- (Forcible Entey), on the ground that theJ failed to perfect the same within the 1'eglementary period provided in Section 2, Rule 40 of the Rules of Court. It ap;l)eau that on Mareh 9, 1967, the Juatiee of the peaere eourt, after hearing, rendered a decision in said ease No. 224 orderinc the defendant.a to reatorp to the plaintiff the "poUession of the questioned Lot No. 3006, to vaeate its premiaieli, ·and to pay the cost.a. Notice of said deC'ision. waa sent to the eounsel of the partiea on April 30, i967, defendants reeetVing their copy on May 24, 19&7. On May 29, 1957, defendants "filed with said court a notlee of appial bond of '26.00 without, however, paying the •ppellate eourt doeket fee of Pl6.00, '8 requited under· Seetion 2, Rule 40, of the Rules of Court. Aeting upon said notice of· appeal, the eoutt, on the same date, isaued an order forwarding the re· cords ·of the ·ease to the Court of First Inst8nee of Iaahela but sta~ therein "without however the docket fee for appeal". The Clerk of Court of First lnstanee reeeived the records on JulJ' 2&, 1967, at 8:40 ·P.M:. :Defendants paid the appellate eourt docket f.ee of P.16.00 onlJ" on the followin1 day, July 26, 196'7. Reeei.Ving plaintiff's motion filed on July 29, 1967, to dismiss the appeal on the ground that it waa not perfected within the reg. lemml:Bl'J' period (.16 days from notice of the judgment) provided in the R~les of Court, the defendants' opposition thereto, the Court ot First lnstan~ OIJ August 28, 1967, iaaued an order dismissing the appeal, Stating in part,. as .follows: x x • "The appellate eourt; docket fee ·inay be deposited. either with the municipal treaeurer Or with the Clerk of COurt of Fir.rt Inatance and a eertifieate of such· deposit shall be atr taehed to the record by the Juitiee of the peaee. It should be deposited. in full within the period of 16 dQs and ~is provi. sion of the. Rul4;11 of CoJJU is mandatoi·y ~nd not direetocy. Therefore, if only ~ of the . amount of the appellate eourt doeket :fee is deposited and the ·other half is rendered.· .after the expiration of such pe.riod, no aj,peal ls being perfected. ( 1le) (Lazaro v. Eadencla, 67 Phil. &62). · 11In the •e&1e at bar, the defendants-appellants did not deposit the appellate eonrt docket fee of Pl8.00 with the Ju• tiere of the Peaee Court .of Rons. ·And as the offieial receipt No. C-7166000, will show, the appellate eourt doeket fee of P.18.00 was only paid by Atty. Dom:in&d.or p; Nuesa on July 26, 1967 or 81 days after the notice of appeal was filed. It is thus clear that the appeal has not been perfected in aeeord· .enoe ?.tith the provi1lon of Section 2, Rule 40, of the Rules of Court. "The contention of appellants' eounaet to the effeet that that there was a Substantial eomplianees with the law is that the docket fee was paid in the Office of the Clerk of Court on July 26, 19157 is without merit because the Rules of Court provides in no uncertain terms that a 'eertifieate of payment of the appellate ~ourt docket fee must be filed with the juatlee of the peace court of orJgtn hi order that the appeal is deemed perfeeted as to warrant the justice of the peace eourt to i-emand the. ease to the" Court of First Instance. LAWYERS JOURNAL _.,, 19, 1960 "For all the :forgoinc eon1ideration1, the Court believes and 10 hold• that the appeal has not been perfected in accord· an"8 with law and, therefore, tbl1 court has not acquired ju. rildictlon. to try the case on the merits.. "WHEREFORE, the appeal should be, aa it is hereby diamtued." Detendantl' motion for :reeonaideration of Yid order on the ground of its illegality having been dented, defendante lnatltuted this pre•nt appeal. · Section 2, Rule 40, of the Rule1 of Court, provides: "SEC. 2. Appeal, how psr/uW - An appeal 1hall be perfeet:ed within fifteen dan after notification to the party of the judgment complained of, (a) by filing witli the justice of ihe peace or municipal judge a notice of appeal; (b) by delt\lerlng a certificate of the munic:.ipal treasurer 1howlng that the appellant. ha• deposited the appellat8 court docket fee, 01• in ~bartered cities, a certifieate of the clerk of i_ucli cou11; showing a receipt of said fee; and (e) _by giv· in1 a bond." ·under this provision of Rules of Court, in order to perfect an appeal from the judgment of the justice of the Peace 01• Municipal Court, an appellant must.- within 11 da-,s from notic:e of the judgment, (1) file with the justice of the peace or municipal judge a notice of appeal, (Z) deliver a certificate of the municipal treasurer or of_ the eletk of the Court of First Instance in chH· t.ered citiea, &howill&' tha~ he has deposi*8d the appellate court dod<et fee, and (3) alve a bond. ln the case under conlideration, while defendant& did file with the Justice of the Peace of Rozas, laabela, their notice of app-1 and ·gave an appeal bond of Pi6.00 on Mar 29, 1967, ther failed to pay the appellate court docket fee of P16.00. It was only on .July 26, 1967, tJiat is 61 daya after filing their notice of ape peal, ffi.dently, ~d the reglementary perlocl of 16 days from notice· of judgment as proYided under the aforequoted section of the Rules of Court, that they effected the pa,ment of the same. Their appeal, therefore, was never perfected in the Court of First Instance of Isabel&, and the trial judge correctlr and properly di· miued said appeal, as it acquired. no Jurisdic~ thereon. Wett-eettled Ls the rule that the failure to pedee:t an appeal :fl'om a Judgment of a Juatiee of the peace court within the period alloWed by law, bars the appeal (Gajiton v. Maria, 64 Phil. 488; Polic:arpio v. Borja, 16 Phil. 31 i Lazaro v. Endencia, supm: Bermudez v. Baltazar, G. R. No. L-10268, prom. April SO, 1967), and that if a party doea not perlect his appeal within the time pre. Cribed by law, the 8P'811ate court cannot acquir.e jurisdiction, and for that rea1on, the eompliance with 1aid requirement is jurisdictional (Leida v. Lep.spi, 39 Phil. 83; Lim v. Singian, 87 Phil. 817.) (') . Defendant claim that plaintiff waived his right to question the tlmeltneas of their appeal, inasmuch as he filed his motion to dismiss wbeia the ease has already been remanded to the Court of ~irst Instance, citing in suppo1t of his submission the cases among· others, of Slad.e-Perkin1 v. Perkin1 (67 Phil. 223) and Luengo v. Hen-ero (17 PhiL 29) In anawer, it may be stated that said ca;aes are not applicable to the camea at bar, for the realOD. that the objection& which were deemed waived therein, refer to queations which do not affect the ju1isdtction of the court. ( 1) See also Roman Catholie Blabop of Tupega1·ao v. Director of Lands, 84 Phil. 628; Cordoba et al. v. Alab"410 84 Phil. 920• Bermudez v. Director of Lands, 36 Phil. 774. Miranda v. Guanzo~ et aL GR. No. L-4992, prom. Oct. 27, 1962; Rodrigo et al., G.R· N~ L-4992, prom. Oct. 27. 1962; Rodrigo v. Seridon, et al., G.R· No.L-'1896, Rea. of July 29, 1964. · They can not. therefore, be inYObd. aa precedents in the detennlnation of this ea11. (Miranda v. Guanson, ll&Pltll.) Detendan·ts, furthermore, argue that then was substantial compliance with the aforequoted. provision of Section Z, Rule 40, of the Ru~es of ~. inasmuch as ~heir failure to par the appellate Court do~ket fee within the period therein provided, was the result of their agreement with the Justice of the Peace that it ahall be paid to the Clerk of the Court of First Instance, who will determine the proper amount to· be paid. The aontention is untenable. The provisions of the Rules of Court, eapeciallJ' those preacribJng the period within which certain acts must be done, or certain procreedlnp taken, which are intended to prevent needless delap and promote the speedy discharge of judicial basinesa. (2)can hardly be the subjeet of ag. reements or stipulations between a court and counsel.(1) In fine, strict, not substantial, compliance therewith is required.(4) WHEREFFORE, finding no error in the order appealed from. the same is hereby affirmed, with cost apinst the defendantsappellants. SO ORDERED. Paru, C.J., Btmgun: Patiiila, Mon.tflllayor, La67'0dot', Coxcepoion, J.B~. Reyes, ~and Gutilln"n D<wid, JJ., concurred. SUPREME COURT RESOLUTION Quoted hereunder, for your information, is a resolution of this Court dated February 10, 1960: "The petition of Antonio Ma. Cui lor i'einst.atement aa member of the Bar sbow1 that he ruignedly acquiuced in the decfte of diabannent. voluntarily .withdraw from litipitions in which he bad engaged as counsel, and up to this. time baa :refrained form en1aging in hb legal profellBion. His petition i1 supported by a · favorable certification :fl'om Judps of the Cebu Court of First Instance and testlmoniala of honeatr and right eon.duct from religious dicnitaries and civil! asaociations of Cebu. Considering that in view of eireumatancea attending his disbarment, thi1 period of enfo.i-eed retirement .ti-om active practice probably constitutea enoush punishment f0r his professional mbeoru:b1ct; The Court awared of the high l'l&'•rd in which he was held by the Bar of Cebu when he was practicing law . in that City, as discloud br the resolution attachlll to the record, and relJing upon his aolemn prolil.111 to behave properlr in the future. GRANTED THE PETITION and ordered the Clerk of Court; to Hat his name anew in the roll of att.ornlJ'I." -----<100--TUT-TU'!;', YOUR HONOR! A sultry blnode was seated in the .;.itness chair. Ber c1re .. lhowed more of her than otherwise. As ahe cro1sed one leg and then the other: the dress crept up. The Judge was ju1t about to tell her to step down when her lawrer spoke. ''Your honor, I've just thought of something." The judp gave him a look, then glanced at the girl, 8.nd. retorted, .,I don't believe there's one man in his courtroom who ~asn't.'' - R. B. MMtin, Fu~ (~) Shiofi v. Harvey, 43 Phil. 338. (I) In Policarplo v. Borja, et al,., supra, the fact that the plaintiff was told by the Justice of the. Peace to return another , day, did not justify his failure to perfect his• appeal ·within the ~ glementacy period. (•) Alvero v. De la Rosa, 78 Phil. 428. F_'ebruarr 29, 1980 LAWYERS IOURNAL' ••