The Lawyers Journal

Media

Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXV (Issue No. 2) February 29, 1960
Year: 1960
Language: English
Rights
Abstract: THE LAWYERS JOURNAL is published monthly by Hon. Vicente J. Francisco, former senator and delegate to the Constitutional Convention, practising attorney and president of the Francisco College (formerly Francisco Law School).
extracted text: JAL iA WYERS JOURNAL VOLUME XXVl VICENTE J. FRANCISCO Editor a.n.l Publishe1· IUCARDO J. FRANCISCO Business Manager CONNIE V. FRANCISCO A1Jsi1fant Bu1it1eBB Maua.ger THE LA WYERS JOURNAL is published monthly by Hon, Vicente J. Francisco, former senator and delegate to the Constitutional Convention, practising attol'ney and president of the Francisco College (fo1·mcrly Francisco l.aw School). SUBSCRIPTION AND ADVERTISING RATES: Sub· sci-iption: P20.00 fo1· one year; Pl0.00 fo1· 6 months; P2.00 per-copy. Advertising Full page - Pl05.00; Half page - P65.00; One-fourth page-P46.00; One-eight page - P35.00; One-sixteenth page MANILA, PHILIPPINES FEBRUARY 29, 1960 NUMBER 2 EDITORIAL: Constitution Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3S Our Future Unde1· the Constitution - By Senator Claro M. Recto . . . . . . . . . . . . 36 Discrepancy Between Figures and Words in Election Returns - by Atty. Leon L. Asa. . . . . . . . . • • . . . . . . • . . . . . . . . . . . . . . . . . . • . . . • . . . . . . 31 SUPREME COURT DECISIONS IN-era v. Gs.rcia et al - Justke Montemayor . . . . . . . . . . . . . . . . . . . . . . . . . . 3~ ,.s.,mson v. Hon. Estenzo et al - Justice Concepcion • . . • • . . . . . . . • . . . . . . . 40 /Yap v. Daniel Salcedo - Ju.sties Labrado1· ..... , . . . . . . . . . . . . . . . . . . . . .. 41 1:: ~t :11 :: ~:~~~a=~:::~;:.:;;::::::::::::::::::::::::::::::: :: 1:lacios v. Palacios - )uatice Bautista. Angelo .......... , .. , , ..... , . , . :: ~:!: ~: ~:~:e:te:1 a-;-.!_ua_,~i:;ic:=.~. ::: : ::: : : :: : : :: : : :: : : :: : : :: : 48 SUPREME COURT RESOLUTION Petition for Reinstatement ~f Atty. Antonio Cui . . . . . . . . . . . . . . . . . . . . . . . . 49 COUIF OF APPEALS DECISION .,Aiagumbayan Productions InC'. v. Balatbat Productions Inc. - Justice Cabahug ..... , ... , ... , , .. , , .. , , .. , ................. , . . 6C> RE:conatitution of Court and Official Records (Public Act No. 3110 and Republici Act No. 441) . . . . . • . . . . . . . . . . . . • . . . . . 61 1959 Bar Examination Questions (Conclusion) Criminal Law ........ , ........•........ , , : ......................•. , . . 69 Political Law ........ , . , .... , , ...... , , , . , , , .. , , .. , , ... , .... , . . . . . . . . . . 69 Remedial Law ........ , , ...... , . , .. , .... , , .......... , , , .. , , . . . . . . . . . . . . 61 Legal Ethics & Practical Exercises 62 PROFILES: MEMBERS OF THE BENCH AND BAR Judge Al"Senio Santos 64 - P26.00; Back issues: P25.00 - twelve issues; PS.OD - a copy. Ent.ered as second class mail matter at the Post Office. BUSINESS OFFICES: R-508 Scme.nillo Bldg. Escolta, Maniln ·--- ___________________ , SPECIAL OFFER TO SUBSCRIBERS 'l'he I,AWYERS JOURNAL wishes to announce that it shall give by way of gift one law book, which may be chosen from the list of books authored by Ex-Senator Vicente J. Francisco and listed hereunder, to any of its current subscribers who could bring in three new subscribers to the LAWYERS JOU:RNAL who would pay in full one year subscription. This offer is also made to "nonsubscribers under the . same terms and conditions. Law schools may complete the required number of books for their library with the books listed in this offer. Subscribers or non-subscribers to whom the free law book shall be sent will only pay for the postage of mailing the same. How To Try Election Cases Land Registration Act (1950) Labor Laws (1949) Revised Election Code Rules of Court (2 volumes) (1948) Criminal Procedure 12 volumes) (1951) 1'orts & Damages (1954i Rev. Penal Code (2 volumes) (191i2) Insurance Law (1949) Philippine Mining Law Legal Bibliography Legal Reaearch Business Law - Oblig. & Contracta •· " - Property & Sales " . -· Insurance " - Partnership & Corporation ·· - Negotiable J nstrum-ents Negotiable Instruments Law Agency Phil. Law of Waters & Water Rights February 29, 1960 Legal History Philippine Petroleum Act Introduction to Law Constitutional History Pre-Bar Review on Administrative Law and Public Officers Civil Procedure Criminal Procedure Corporation Law & Securities Act Evidence Land Registration & Mortgages Private International Law Mercantile Law BUSINESS MANAGER i ! I I I . ______ J CONSTITUTION DAY Co1'Btituti0n Day w.. fitti'lll/ly obsB1'1!etl in Mam/a 1.-ith the Supreme Court to declare saitl law unconstitula1t Febma;ry 8, the tla;t., .the tezt of the Co"8titutio" w,.. tiona;I a;nd Olr(ltUld t/&a;t "the Conatitutio" ,,.. guaranteed submitted to tlw Co...Ututional Conv6"tion for itB fi'IUJJ. the t f · ,.,,__ f the --• approval twenty-"'··• ye"re ago. The ......,;,,;,.g ~elegatee, mure o o '""' o """""'er' of the jtuliWJ,ry by 1 •• " provitli7'g th<it 'the member• of t"8 Swprome Court <ind h<ippily •till more th<i" one-half of t"8 mtire """8titu6"t a;!! f~gee of !nfmor courtB '~"U hold office duri7'g good body, were properly regaled, in ..., effort, no doubt, to beh<ivwr, U7'til th811 rmu:h tkB age of 81,.,.,.ty years or .......W them 1esl· that despite the flight of time and the b~come ineapaci~ed to d!UJch<irge tkB duties of t"8i,: of· lnezoroble fact that sooner or later they, too, will join f•!'",'· Implementing this C0"8titutional provision, the J• th.e ca;nJ11Q;n to that .. ,,,.,,.,,C0118r'd · 001lllOtry from whose dimary Act of 1948 pro11itled that 'No Dismct Jtulge boum no traveller returns," the public stiR ram...Wers Jtulge-at-Large, or Ca;tla;st:raJ, Jtulge shall be separated 0; them with pride and gratitude and appreaia.tes th.eir en- removed f"!"!' office by th.e ~ent of the Philippines during work, the monument th811 reared for t"8 good of unless sufficient causo shall ezist, in the ;tulgment of the tho poople and the glory of thBir nativo land. 8!'Preme Court, involTJing serioue miscoMuct or tnaff;r But COf!Btitution Day tloee not and cannot moa" much coency, for the removal of said ;uil.ge from office afif in reaMty it merely ....,,es ,.. ..., occasion to honor and ter the 1»'0Per proceedings,' <ind the Rules of Court pree:ttol t"8 living delegatee und to remind tkB pr...,.t gen- scribe the :('ro•edure for tkB removol of jtulgee of the erution th.cit it h .. a """8titution of its own "oacredly obli- Court of First lnsta7'ce, which is cha.racterised by due gatory upon a;!!," in the graphic words of w .. hington, proceee, for t"8 itulge should be mformed of the ch<irges und tha;t on the eighth day of the second month of every ugai1'Bt him, und he -should be heard In his own def8"8e year, the people must observe it und what it stands for. before he is removed. Its real me"ning lies far deeper th<in the mere outward •. o~anee of the day. It ie a co"8tant and solemn re- But for the Congress to charge ;wlges .. incompetent mind.,. to aU t"8 Filtpino people th<it on th<it parUCular ' bi· d!'honest, "nd to logia/ate them out, the. Congress thus day they ought "nd must rsnew their pledge of dediea- p~ymg th_• _role of ~ccuser a..a ftulge at the 8"me time, tion to the d<fsnse' and preservation of so nob lo a eh<ir- with.out fll."'"9 ~h.e iwlges concemed the opportunity to ter so th<it its spirit shall o.lwa11s prevail "nd the princi- be hoard m th .. •· own d•fense, iB a prooedure not .,.,... ples it enunciates a.?id embodiea shall remain forever tioned by our Ccmstituti.on a.nd unknown in a. {1()1JBrn· triumphant und inviolate. "'""t of laws. The constitutional provieion securing the In his impresei1Je valedictory address in Spanieh ;., ttmure of office and salaries of members of the Judiciary 1985 a.swell as in his recent Bilvw a.nni11erSMY speech i.n were e~essly intended as limitations upon the power English before· t.he delegates and their guestB and friends of the e:tecuti11e and legielati11e departments to disturb a.t. the Manila Hotel, Senator Claro M. Recto, President these .•afegua;rd.e of ~n indep6"dent depO!rtment. They of the Co"8titi/.ent Assembly, ezpresaed the hopo th<it were •n~d. to be fi:te~ and uMUerabl•, subject .. io .... future geruxro.!Jiims of Filipinos will "recognize the !of· to ?He limitation whi~h ••, the r~ of a jtulge from tiness of our motivss "nd the mfl!mitwle of our task" and office .f?" causes o( his own croation [serioue mieconduct] t11iU realize th<it the ultimate goo.I "" 1oell .. the .. pira- or a,....ng f~ h'8 person"I condition [ineapacity to diation of tho d.eleg,.tes w .. that God make the Philippinee charge the duties of his offi•• or for havi'lll/ reached the "" happy country." At the same time he 110iced his con- <ige of 70 years~ to _be determined by the Suprsme Court, fidence that "t"8 Constitution oh<iU ... li11e through the '!"t by the LegisllJtion. In other words, the r""'°"al of ages a;s long .. tkB Nipino nation ska;!! 1i11e." iudges on ""II of t"8se grounds must be made by ,...,.,.. His prediction ie surel11 a con.summution devoutl11 to of tkB proceeding. prescribed,. which iii itulicial in nature. be 1oiehed by evsry true Filipino. Unfortunately, at· the TkB C"'!"titution does not vest in the ·Congress the power rato the COf!BtitutJion h.. be6" fl.outed and violated for to ~mte the tmure of office of ftulges of the Court sheer political ezpedisncu, one may well wonder how long of First !""t..nce or any other fudge by removi'lll/ them it will rea;ll11 last. In the past few ye,.rs, two important from office. It Ila 'high time that the Supr..,.. Court ..... h<ive been elS11ated · to tho Supreme Court to test should atop once and for a;!! this injtulicious eneroachmsnt once "guln its 11o.li&ity a1'd sacredness .. well ,.. the sin· of the Congress upon the ftuliciary, and to make t"8 Concerity of soms of itB lsadina framers and avowed a4- gress roaliee that although the judiciay does not possess mire•·•· On both occa;sions, it ,is sad to sa;y, on1?1 one of the force nor the will but m&reZ.J ftulgment, and although th~ de~gate~ ~red come to .•ts rescus, only one tla;rod it cannot diepense honors "nd hold the sword like the t-a.tse his !otc~ tn _protest ~go.inst the a.ttempt to c_onvert ezecutive, nor command the purae like the legislative yet the Qonstitution into an ,,,.t.l.......t, a w&apon •n the 't . -•· · '. strugale for political power. i '8 not a subo,...ina;te of the ~7e~twe or of t~ legis/a.The first fr<lgrant "nd in " way most scandalous ture, and t~ ~ the P.hilt~P:'~ "°"."ti~onal. Bii•· case was the deliberate "weeding out" by mere legiala.- tem, the legis~ve, the ezecutive and 3udicial. deparrt •. tion - Republic Act No. 1186 passed by t"8 Congress m.,.tB are a;!! coordinate, co-equal and pot6"tia;l!y coez. a.nd became a. law in miMight of June 19, 1954 - of tensi'IJe." Judges-at../Arge and Cad .. t:raJ, Jtulges. The only ..... on Article Vlll, Section 10 Qf the .Constitution of the Philippinee provides that: "No law may be declared uneonstitutio'IUJJ. without the concurrence of two-thirds of a;!! the mombers of the Supremo Court." Unfortun<itely-, the ousted judges ioere not able to secure the concurrence of two-thirds of aU the. membero of the Suprome Court in declaring the law unconstitutional. Seven Justices voted for holding the law un"""8titu.ti....U "nd four in fcivor for the move wus th<it, ,.. tkB majority floor leader of the House of Representatives put it, sp6"/cing evidently for the rest, the party in power considered th..,. "undeeirable" presumably because they did not toe the lino. Former Senator Franeisco' filed " prohibition c .. e 1Chairman of the Committee on Judieiar7 of the Constitutional Convention. FebnJl,ey 29, .19.60 LAWYERS JOURNAL •• of its ..,,...titutionalifv. One of t/i.e J1Ultit:etJ' consid..-61l BUch law "' an attempt 4gai"8t the imlepondonce of the Judiaialrri, am! made tko foll.owtng remark: "Admittodl11, soctlon 7 ATticle VIII 4ims to P'l'f1" .....,. the imlopendenco of the :iudiaiaJrrl. It ..,...,.., tkat·BO 1.ong "' ther b•h"""· t/uly cannot be remo.,ed from of/io• - no ,,.,.tt..- what parlll controls th.e Govemm611t - ""til th611 TB4Dk t/i.e age of swenty 116M"8 OT become incmpaoitatod. To complete their ill<lependenco fTOm political control OT preBBWre, it fwrth..- ..,......, thsm that tkeir alllaries cannot be diminished awing thei#' incumbenc11. [Sec. 9]. Hence it ,,.,., bo ,..w, of what consequence is the ..,...,..,,.., of tenure of office and of salaTY non-diminution, if. anrw411 judges could be legislat61l !"'t ·thTOugh " court reorganiemtiOnf ••• The Constittr tional Con.,ention want61l judges """{raid to loee their jobs or their sala.t;ies, unmo.,ed am! ""811J/11161l by any consideratio"8, e:x;cept tho trepidations of the fu4icial bala.nce." Anoth..- Justice'. "8eerting thet euch kiml of law tends to make the Judiciary eubaeT'1ient to the Lsgislatu:re, Bllid: ·"We can ,...,,. no independent Judioiary if judicial tenure ,,.,.II b• skOTtened or destroyml, bit legistati"e reorgBnieation, how6"er well intention61l _am! well meant. There is real 4nd OT""• danger of the Jfitliciary ...,611tu4Uy being sul>Bffllient to a Legis'ltl.llur8 th"t thru 4bolitipn of judicial posts bit m.,.... of a :iudicial reorg,.nieation can ""make judges. Ami how could " Jw!;i,cifl,ry, which ""4er " ..,,...tituti<mal form of govem.m.ent, is supposed to act aa a. check ,.g4i"8t t/i.e Legisllltwre for any violatiOn of the ConstitutiOn, do so when such Judiciary is subseroient to tho Legislature it is supposed to check f'' Th.e ••com! case is not leBB sca:ndalmur GB the firft one. It 6&11ol11ed an ezeoutive 'Violatiotr. of the same doct.ine of sep,.rotion of powsrs. A judge of t/i.e Court of First I...t .. nce of Iloil.o W"8 direct•d by the President, thru the Secretary of Juetice, to ....,. in the Offi•• of the Prasidsnt m Malecanang "' 4dms..- on ~•gal matt..-s, .,.;a judge h""ing ...,.,..festod that "he would 86T1J• ln thet cep,.city becaUBe the Presidsnt wanted him to." E:x;-Ssn4tOT Francisco, asserting that BUCh 4ct of the Presid.,.t was """°""Oitutional, i"'tituted a ,,.,.mlamUB proceoding in the Supreme Court to compel sa.id ;1,doe to dtscha-rge his f""•*"' as BUch, 4nd thet his ,.,Bignment to '""'" as legal '4d1Jiser in M..tacallang, - " non-judicial functiOn - be doclM'ed as 1Jiolati1Je of the Constitution. Contsnding that the act of the Preskl.ti:ni: '"as uncon..crtituN'll'l74l Atty. Francisco 4dwnc61l the following argumsnt be/OTO the Supreme Court:' "The order of the President to the Secretary of JUBtice to reliB1Je the respondent judge from his duties of perfoNnJing the judicial act of 4dmlnistering ;ustice in the cowt of which hR WCIB appointed and to detail him in Matacanang to p..-fOTm non-fudWal functions - to "8oist him on legal matters - is doubl•1 un..,,...titutional, firstly, ~ecaUBe the Constitution has· not gi1Jen him any power to give such order, and secondly, beca.use BUCh order 'Violates the principle of separation of powers. The ConBtitution has in.,est61l the powsr of g01Jernmsnt in threo .distinct departments: the LsgislatWe. E:tecuti1Je and the Judiciary, all of 1uhich are poaaesaed of powers ....,...,.ting alike from the people am! limit61l and defined alil.. by tho people; thUB, all thr.. deparlmenta. are coordinate, coequal and co-impOTtant and of equal dignity. Thoe dot4iling of a member of the Jutficiary to a position tmder the ea:eioutive department and in wht:ch he is responsible to. the President for hfil offi'Jial acts, would have 2Mr. Justiee Cesa1· BeDRZQn. 1M1·. Justice Mar&ltno a. Montemaycu·. the •ff••t of r61luoing the Judicia.rg to a position eubordinate to that of the ""'""'"'"" in 1Jiolation of the principle of C06qUIJlity am! equal digflity of the two departmsnts. The truth of this proposition is too plain to require elucidation. To say th1>t BUch a practice is law/111 1>ml permissible would be to B"1J toot the e:x;ecuti'1e ,,.,." detail not only one but two, {i'1e, tsn or a.ny number of judges of first ;,..tanco to his office. It is immateriol whether the Presidsnt will do it. What is importa.nt is "whether he can do it. If judo.es wer" to drop their duties 1>t the .bidding of tke Presidsnt or the Secretatry of Juetice in order to work in the e:i:ecutive department, the Courts of First Imta.nco would be " mere appendago of tho ezecuti1Je, to be ,...,,, ,.. the President ple,.,es. Th..-eb11, the E:i:ecutive would have. it in his power to destroy the m.: tegrity am! effecti""""'" of the JudioiMt/, cripple it atul render it useless whenever he pleases. In a democracy such as ours, no tn.at more sacred <ittd 1Jital could be reposed by tho B01Jsreign in any ono toon toot of e:x;eroising judicial powers. In the carrying out of toot t.UBt, the judge, ali a minister of iuetic•, P"''"' upon questi°"' affecting the Uf•, lib..-ty am! property of the citie.,... I" him iii confided the solemn t,.,k, no~ only of enforcing am! protecting pereonal Gm! propnet"'1J rights, but of safeguarding the people from tyranny a.ml oppression ,.m1 pr1B0T1Jing. their freedom and inalisnGb~ constitutional rights. He is part am! iiareel of the ;..a .. cilM"!I which is 1JBneroted as the bulwark of fUBti<:s ,.m1 freodom. Upon accepting toot t.UBt and taki"n the oa.th toot with the help of God he will well am! faJit.hfully diBcherge tho same to the best of his ooility, reepondsnt should ,....,. felt himself consecrated tksreto "ml proeeed61l to perfOTm the 8"me with utmost de1Jotion and dedication. He should not """" eubseT1Jiently obeyed the ord..of the Presidsnt to '""'" in Matacanang as it is offensi"e to the Comtitution which he as fudge am! the President ,.. such ,....,. solemnly sworn to BUpport am! defe:nd." UnfOTtuMtely the deoieion of the Supreme Court w4B not m4de known fu the people becaUBo before its promtdgation, of the decision whi~h _would reportedly h~e 4d"ersely "ff••ted him the Bald 1udge !W"C6""'d ...,.n1fested to the Court that he was appointed technical M1Jleer on legal ..... tters to the PresUlent, thet he accepted such office of legal 4d1Jieer "ml "b"•~•d and· renounced his office ,., judge of the Court of ~rst InBtance, and, th.ere/ore, the case for mandamus against him. had become a moot question and mUBt be dismissed.. And th• Supreme Co'!rt t·eaolved to dismiss the case, as it became a moot one with the resignation of the judge. Paradozical CIB it may sound, in the case of ;udges, the bi'IZ which was "°""erted into law ousting them fTOm th• Judiciary w"' filed by a fDTmBT delegate to the co"'titutionol ~"sntion, one of the iuetices who 1Joted in fa."OT of the co"8titutionali~y ~f .t/i.e law was also a fo~ delegate am! three of th$ "'ctims of such law were lik•· 1r:iae former delegates to the convention. Timoly, th..-efore, is the following wa.rning of Sonator .Recto: "Neith67' in the toils of the day nor in the vigils of the night can the sentinels of the Constitution reta:x; their 1Jigitance. L•t us all be '°"TY 4ml staml by our arms, lest, by eulpable tolerance or by criminal neglig.,.,,,., our aa....try aluntld in some forbid.ding future become a dOBolate C4rthage wherein only the nak61l. rui"' of our republic shall remain, faU... monumsnts of the p4Bt in 1ohose debria our descendants, by then the fOTlorn bondsmsn of some •O>TU'llt despot; aha.U in vain endeavor to decfpher the 1.a:ngu.ge of the Constitution, i"8cribed, "' in forgotten: hieroglyphs on the sarcopoogUB of our de4d freed<Yms." 84 LAWYERS JOURNAL FebraarJ' 29, 1880 OUR FUTURE UNDER THE CONSTITUTION• By SENATOR CLARO II. RECTO Thia la the eve of not only Constitution Day but of the Silver Jubilee of ita adoption. It was on February 8, 1985 at 6 :46 in the afternoon, aa recorded by one of ita most diatinguiahed cbroniclera, Dr. JoH M. Arueeo, that the text of the Constitution was pat to a final YOte for its approval by the delep.tea to the Convention. The vote waa, to all Intents and purposes, unanimoua, despite the negative vote ea.at by Delepte Cabili which was not realb' a vote against the Constitution but a maniteat.ation of his objection to the method of enfranchisement of the province of Lanao far 'the el~ of its repreaentativea to the National Assembly. Delegate Cabili wanted an exprea1 provision in the Conatit11lion itaelf for that purpose and not mere conatitutional authority; for a future ordinary enaetment. After voting on th8 Constitution, but before parting from one another, I gave a valedictory ending in a paragraph which I am eoinc t.o repeat. with :your gracious leave, in its original Spanish: "Paaari.n rodando al olvido 'JI a I& nada, loa aiios y 0 los lustros; nuevaa eeneraeionea aueederAn a 1u presentes, cada eual eon un idearlo nuevo 1' su caudal de progrqo aumentado o disminuido a trave& de siglos de aaeensi6n o deeadeneia; el tiempo, en 1nee1ante devenir, had en loa mundoe niat.entes su obra lenta, pero inexorable, de tenovaei6n y exterminio; y la humanidad, hutiada de ai mtama 1 preaa de nuevas locuraa, arrojar& una ves y otra al ineendlo de las eapantabl88 .guerraa del porvenlr los teaoros de la e1Tllisael6n; pero euando nueatros descendienta vuelvan la mirada al pasado en procura de inspiraei6n 1 doctrlna, y fijen au atene16n en esta ley :fundamental qae ahora sale de nueatras ma· nos, confio en que la juzgarh reconoclendo la alteza de nueatros propoaitoa y la magnitud de nuestro eafuerzo, y ver&n que los euidados y afanes que orientaron el eurso de nueatra labor no fueron para recoger aplausoa: del presente y legar nueatros nombres al futuro en el bronee y marmol de ana gloria perdurable. slno realisar para nuestro pueblo, por medlo de esta Conatituei6n, aquel •nto anhelo que palpita en eatas palabras Dena.a de aabiduria humana y de uncion divina eon que un ilustre prelado, clorla del &a· eerdoeio indigena, lnvoc6 al Supremo Hasedor en aquel dia memosable en que lnieiamoa nueatras tareaa: 'Seftor, T'li, que eres fuente de todo pod.er y ori«en de toda bienandanza, haz de Filiplnas un pueblo fells en el que relnaa.' " I~ contained melancholy premonitions about the future, and what seemsd to be a pbophecy of the total war that three years later was to bring misery and desolation to mankind was nothing more than the knowledge acquired from history of a phenomenon that _recur& in cycles. . But becauae I spoke in your name and expressed your feelin1a my parting words were, nevertheless, preg. nant with hope for a great destiny for our people and with faith in the merel.ful Lord Who at that V8l'y hour was bringing them out of secular bondage. That memorable day marked the birth of the Constitution of the Philippines. Almost one half of thoae of ua who participated in its writing have Crosaed the Great Divide. The youngest among u toda1, like delegates Abella, Aldegoer, Canonay, Clorlbel, Cre"" pillo, Conejero, Dungiang, Galang, Gumangan, J"oa6 de Gusman, Joven, Melmdes, Jesds P6re.z, Toribio Perez, and Velasco, may still hope to be among the celebrants of the Golden Jubilee of the Cons. tltution. Beyond that all ot us, its framers, shall be no more. but the Constitution shall, from one centennial to another, live through the ages, as long aa the Filipino nation shall live. In • Speech delivel"ed at the annual Constitution Da1 dinner held at the Manila Hotel on the night of February '1, 1980 to celebrate the Silver Jubilee of the Constitution. thia quarter of a eentmj' of the life of the Conetltutlon we went through a world war, the cruelest that bas ever scourged mankind aiBC'e Cain dipped his hands in Abel's blood, and three :r-ra of a moat 'rieious enemy occupation, bUt the nation and its Constitu. tion have survived, and they shall survive, because Divine Pr.videnee, whose aid and guidance we Invoked In framing this historical instrument. will not deny our people Bia aaataining care. Our hope not only for national survival but for the realization of a great destiny for our people is rooted in the finn conviction that the free and ordered life of our nation depends upon the preservation of those ideals and injunctions proclaimed in the preamble and the declaration of principles of the Constitution: conserve and develop the national patrimony, promote the general welfare and insure the well-being and economic security of all the people, renounce war as an instrument of national policy, but Jnak. ing the defense of the state apinat aggreaalon the prime duty of all citizens, and aecun to thia generation and the sueeeedinc ones the blessings of independence under a regime of justice, liberty and ~ocraey, forever united in a common deatin11 under one , flag and one God. And yet our Constitution, or any omatitution for that matter. does not and cannot work miracles. lte lofty declaration of aima and principles, ita wise commands and injunctions, are not the "open sesame'' to all the promised treasures of a republican rectme nor a magic formula which can h., itself restore youth and vigor to a decrepit polity. It fa an instrument, noble, it la true, In ita origin and purpose, but a very human thing too, and it can only attain dyanamle validity h., popular eonaclousnesa faith and militancy. In an American magazine(') I read many years ago that the orignal document. eontaining the Dedaratian of Independence and ' the Constitution of the United States were transferred from the Lib1·ary of the United Stat.ea Concresa to the National Arehivea BuildinJ. The. editor of the mspsble, after reporting that a JDi.;. litary escort and military band had attended them, observed: 4'Bow uncomplicated it looked, this physical act of guarding our greatest tre&SDreal And how serene" - he continued - "life would be if the euenee of the doeumentl could be . .guarded ao easily, so p1-ecisely, and with sueh gay props as bagpipes and aueh exact ones as machine guns? Ah, liberty" - th8 magazine editor concluded - "you look so simple crossing town!" We are perhaps in a elearei• position. The war d .. troyed the original of the Constitution, and we are free from any confusion between the historic document it.self as a tiusured poueaslon and the infinitely more precious spirit which it once embodied. It ts only the spirit of the great charter over which we must stand gua1'd to pruerve it.a purity and integrity. Yet we may regard that apirit to be too simple a thing, just a matter of bureaucratic rodtine, adorned with good intentions and vehement protestations of loplty to the ideals of freedom. We may grow to believe that the Constitutiln will work on ua like graft!: fl'om heaYen, or like a guardian angel, benevolent and detached, leading us away from temptations of personal ninglory and unbridled love of power and riches. and delivering us from all the evils of misgovernment. And yet such is not the ease, for, when the people no longer agree on the neeessity of living under the Constitution both in good and in bad times, when they are ready to dtseard it for immediate material rewards or to e1oae their eyes to its violation for tem.poraey advantages, the Constitution eannot wOrk. These a1-e not idle apeculationa. Our faith in the Conatltv.( 1) TM New Yorker, Dec. 27, 1962. FebrQan 29, 1960 LAWYERS JOURNAL 86 tion hai' been repeatedly teated bJ' numeroua nenta durins the twentJ"..five years of ita life and often found wamine. Let us aak ourael'vea Certain. quutiona and answer them honeatly Jn tbe aanctuaey of our conaeieace. Are we ready to defend the freedom of speech of those with whom we dfa&Tee, of thOH Whose eoncEpta of aoe:lety and political authority we violentq detest! Are we ready ~ willilll' to teat the WlidiQ" Of our beliefs in 'the open market .of ideaaT ~re we dis~ and wtlliftir "t.o maint.&in th8 pUrity of suffrage even at j;be priCe of aft adTel'le popular ftrdici? Shall we keep faith with ~ eoDmtU.tioft even ~Ugh it may mean the sacrifice of our political f0riUnea o~ eConomic leeurity? Throughout the history of democracy men . have faced th"eae queations and haft aeldom giffD. clear and definite answeri. In the hi.te 1930'a ~e German people, in iheir millions, haunted. by fear of Communism; groaninl' ulider the weight of the Treaty Of Versailles, deaperatielY eager f0r aecurity, infinitely Weary Of deatttutlon and unemplOJ'IDent, caat aaidllii. the Weimar Conatitution and gave ablolute power to i. mad dictator, only to suffer the calami. tOµs con~uences of aueh an injudicious choice. Cari we, who be: lleve · ib democracy and in the advantacea of ou1· Constitution over any other form Ot government, take for granted that our people, tf put· to the same teat, ahall always believe what we ourselves now believe, or that we ourselves ahall always be true to our preSfllt eonvidions! In our country, democracy is still an educational proceu . .:We must train ourselves in its principles and practices; we must heh• • train all the people by ,precept and example; we must risk un. popularity and miaunderstandine to ahnw the people the distant goals,. the hidden dangers, the necesaity of temporary sacrifices if our democratic system ia to aurrive. And this obligation rests more particularly on those of us who had a hand in the framing of the Constitution or who are nsted with the powers of government it ha1 defined and provided. I ee aronnd me tonight old and beloved colleagues of the Con. stltutional Convention of 1934. I take it . that not only they but all .. the Filipinos in• this distinguished audienee are committed, by their very presence here, to the defenae of the Constitution. I should like to see all of us unite in the common effort of making our people deeply conscious that the Constitution must be obeyed by . and enforced upon both rulers and governed, and that it.a ultimate and permanen* adnntaps will far outweigh any temporary discomforts and privations :we mar suffer in obeying and enforcing it. Only thus ean we make certain that the Conatitution shall -« endure, and wi"!:h it the system of government and waJ. of life whicfu. it was it.a purpose to eatablilh, guarantee and presene. The plebi1cite of 1986 that .stamped it.a approval on the peat iustJ:ument which . the. Conatitutional Convention adopted aa the auPreme l&w oi. · the land. did Dot adjudicate the queatlon for all ttm8. It was not a final judgment. In a democracy aueh aa oU.ra th8re is a permanent 0plebiacit8 in which we east our vote~ for Or against the Const~tution ~Ing aa w8 &ci Or fall to aet. For, let Ui not forg8t, tb id~la ·of. d~acY. the ipirlt of the Constitution, ~t only may be uprOoted or felled by direct assBUlt, but theY e&n also Wi.thei- through dis.use or abandonment. Inasmuch aS in the. CoU:rse of oUr national existence we are bound to face, oftener than not, the temptations of expediency and ~er :l'rultration and the fears that ripen into despair, the faith.of our peOple in t"tie Constitution must be eonatantly kept militant, vigol-oul And at.8adfast: · · I d~ nOt mean tO Underestini&.te th.e wisdom ~nd ~turity of our people when I 1ay that th,e gospel. of deiitoCr8cf ·must be conS.: iantly preached tO theni ~ When even ·lawyer& ca~not agrff on what ~e Constitution Mys, it is folly ~ expect the lay mind to pereeiVe fully the implications' and effects of any eneroi.chment Upon its dominiOn& When ancient &nd cultured peoplea ·~ve de&· paired of the efficacy of ~Oci-ati~ Pr«ea• in "times o:f"uph~val; we ~an hardly ~pect ~r Jieople tO thaiii.iaiiii'an .inwaVering faith in the Constitution under,.'l~verae ei~-cu~~\Ces~ ~Ji1e~-,-iii".lhi8 formative period of our Republle, they are thoroughly acquainted with its prineiplel and eonatantlJ' dildpltned in habitual loyalty to them. Tbeir doubt& and difficulties muat, therefore, be aquarelJ' met and reaolved aa soon and aa often as they arise, and the dangen of hasty and opportunistic dedatons fearleuly and promptly ezpoaed. Thoae who can now loot beyond present fears and desires must share their foreboding& with the people, not in a spirit of vain· g~l'f, or presumptuousness, oi: of defeatism, but simply in the conaeiousnesa of a common fate. For all of us. reeardle1a of party, regardlftl of ideology or eondition, must suffer equally from the debasement. of the Constitution and the resulting impairment of democraey, Isolated in· fractions, if left uncorrected, may in time become a chronic oon· dition , If the Constitution ia allo1f8Cl to be violated in one provi. aion, it will be easily violated in another provision. If the Cons. iitUt.ion ia suspended as to one group of citiaens, it can be aus· pended as to another group of citizens. If one departmeat of the government can invade and usurp the powen of another, so ean it invade and usurp the totality of power. And if, aa a reault, the Con~tution falls, all. of ua shall fall. with it, the learned and the untutored, the foresighted and the im· prorident, the courageous and the hesitant, the wealthy and the poor, the lovers of libertY aud its enemies and detractor•. None of us can be sure that he will have no need of the Con1titutlon; it behooves us all, therefore, to protect and preserve it for an mt day. The ffl'Y persona who ·now defy the Const.itution or allow it to be subverted or undermined. without proteat, may themselves ery out for its protection tomorrow, and bewail the loss of the guarantees that they themselves destroyed or denied to their enemies. Then indeed may they weep like Boabdil, the last lloorilh king of Granada, who, paualne in his flight at a bridge for one last look at his beloved city, wept for his lost dominions, only to be .bitterly reproached by his mother in theae unforgebable words: "'Weep like a woman over the kingdom you c:wld not tt. fend like a man.". , It is true that upon our judges ruts the responsibility Of , intet"Pretill&' and appl.yinc the Constitution, finding ita trua spirit. in and between the faltering Iang;uap of its human aut.hora. But the Constitution ill, alter all, a political law and democracy a political ayatem, and it is inevitable that both the Consti: tutlon and democracy should be the· special coftcern of the two poIitieal departments of the eovernment. They it Ii ·that are called upon to lead in the preservation of the.system of government· we have rightly chosen, by showing in words aDd deeds that it can succeed, and succeed more fully than any "Other System, in anj conceivable situation for any legitimate objective. The Conl'l'US baa convened in regular session a few days ago in the usual atmosphere of po~itieal i~tril'ues, selfishneas, and lust for power. Before the 10Cktay pll!Jriod ends we ~l, I am sure, witness bitter and protl,'acted political battles bet~ Congress and the Presi.Clent, ))e:tween _the two houses Of Congress and between the memben of . each Hou1e n:ot only among those professing di7 vel'le party 1ova1t1es bUt even amonc those under the same politicai hi.nner. · ' I I.~ not one to deery iucli eonflieta when they arise from honest differences of opinicm and for altruistic: motives. It is good lVitliiii limits, that ·v.-e ·about~ diaa~. There ~ lesa chanc~ tha~ Cb9 peOpie Will be robbed atid iwindled of their rights Whi!n their aPn~ aiid ti:,iiitee:I "are ~~tually jeal~s~ an~· !1ailani:, S~;h emi: flieta and differencea are pa~ of a democratic s7stem; only tyran. ny ean 1m·Poae. ai:i ai-t:ifieial unahimity of thought an.d aCtl_on, the unanimity in a. gia-ffJrard. Polities,. by_ it.a very nat~re, is COD-: fliCt, and contli_et for poWer is tht! in.oat unrelentinl' Of all confllctl. When tlie bai~nce of power, wb~ ~s _the soul of dem0cracy~ ~h:-i;::.;e:e a°::W-C:!.18 j::ni!~a~:.: =~;!:' with the power of confirmation, the power of legislation with the pO~ of e~forceml!Jlt_. the p.,~ . to ~e~l~re . .a p~licY With t~e. ~ Wer to carry it out, the. powe;r to. r~;.se inoney with t~e pc;nrer .to: disburse it, eonspire in the interest of total power by one man or 96 LAWYERS JOURNAL Febru8i-, ·29, 1e8o 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' •• COURT OF APPEALS DECISION Bagam.6apn. Protluctiou, Ino., P.Utioilar, w. BUtbat Produotiona, Inc. tJ1zd Hon. Greoorio S. NtW1JtHG, Jud(le, Manila. Caurt of Firat lnatanee, R88pondetitl', CA·G. B. Nq. 26486-R, Fdruarr 2, 1960, CslHihug, J. CIVIL PROCEDURE; TRIAL BY COMMISSIONER; SEC'l'ION 1 RULE 8' OF RULES OF COURT CONSTRUED. - Under the provision of Seetion t, Rule 84 of the Rules of CoU1·t "By written consent of both parties, filed with the clerk, the court may oi-der any ~ all of the iuues in a erase to be referred to a eommissioner to be agreed upon by the part.lea or tOI be appointed by the C"OUrt.'' In the cue· at bar, although there was no written consent aicned by the parties filed with the clerk of court in °Ci'ril Cue No. 85118 but the :Parties therein havinc manifested to rea. pondent judce tn open court their agreement to the continuation of the proceedinp before the elark. of court and the same agree. ment havin&' been incorporated in the order of August .10, 1969, the provision of Section 1, Rule .S4 of the Rules of Court ha• been substantially complied with. Vicnte J. FrtmOi.lco, for respondents. Luil .Manaltinp, for petitioner. 'DECISION In an original petition 'filed with this court petitioner praya that a) the order of the court referring erosa-eumination of petioner'.i witnesaea and the introduetion of evidence by respondent before the eommissioner and all other proceedings by nature included· therein as well as the few C!l'Ola-question already propounded by the respondent's counsel before the commissioner, clerk Macario M. Ofilada, be deelaljed. null and void; b) ordering the rupondent honorable" judge to ftt the ·hearing befo1"e the court and prohibiting him to refer to a commissioner the eross-n:amtnatlon and introduction of evidence of respondent i e) that the respondent, a.eept the respondent honorable judge, be ordered to pa~ actual dam~ in tbe amount of P2,000 for attorney's fees and other incidental ex pensee of the litigation and moral damages in the a~unt of Pl-0,000, plus coats.'' The record .diaeloses that herein petitioner was the plaintiff in Civil Case No. 36118 of the Court of First Instance of Manila, while herein respondent Balat.bat- Productions, lne. was the de· fenda.nt therein. When the trial of that eaae was called on June 29, 1969, neither the defendant nor its counsel .appeared; whereupon Judp Gregorio S. Narvasa, presiding over branch V of the same cou1-t issued an Order allowing the plaintiff to present its evidence before Clerk of Court Maeario M. Ofliada. Upon the de· fendant's motion and despite the plaintiff 8tron1 opposition, the court, on July 6, 1969, gave the "defendUit•, counsel an opportu· nltJ' to erooaa.examine the witnesaes presented by the plaintiff durinc the ex-parte reception of the latter's evidence, and adduce evidence for aaid defendant." For this purpoae the bearing of the ease wu Ht for July 27, 1969. A petition for the reconsideration of thta order was denied on the 16th of the same month. Alleging that he would be in llollo City to attend to some pending eases before the Iloilo branch of the Court of -Industrial Relations, on July 14., 1969 counsel for plaintiff moved for the cancellation of the hearing set fo1· July 22, 1969 and that it be reset for the following month, which motion wsa opposed by the defendant. Neither the herein petitioner nor. the respondents attached to their petition and answer the ordet reaol:ring this motion :fo1• postponement of plaintiff, but it is preBUmed that the same waa granted and the hearing was postponed on August 10, 19&9; for on tbla date, herein respondent judge i881led. the following order: "By agreement of the parties, the continuation of the proceedings in this case may be had before the Clerk of Court who is hereby authorized · to receive the evidence the parties may. present.'' It appears that immediately after the lasuanee of this order, the partiea in the above numbered civil cue appeared before Clerk of Court Maeario M. Ofilada who, at 9:06 a.m. of the same day. opened the hearinc with plaintiff's wttneaa Jose MW Remandez testifying on erosa-examinatlon. However, this erou.examination had to be suspended because ae«1rding to the plaintiff's eounael, he 11"A"Ould like to avail 1117self of the provilo of the order of the Honorable Court that in ease we did not get along all right, beeauae o:f so many legal queationa that are being raised, we can have the ease returned to the Honprable Judge." And In a motion bearing the same date of August 10, 1969 but filed on the 18th, the plaintiff asked that the hearing of the ease be conducted on" September 2, 190 before ihe respondent judge and not before the C'Ommlsaioner. Upon the denial of this last motion on August 18, 1959, the plaintiff filed an urgent motion for reeonslderateon praying that this last order of denial be reconsidered and a~ be entered orderinc the continuance of the hearing before the court and not before the commissioner. Acting on this mqtion for reeonaideration and the ~position thereto, respondent judge i88Ued September 18, 1969 the order hereinbelow quoted: "After careful c:onsideration of plaintiff's urgent motion for reconsideration of Order of August 13, 1968, denying said plaintiff's motion to continue hearing of this ease before the Judge himself Instead of this ease before the Clerk of Court, u per Order of August 10, 1969, and of defendant's opposition thereto,' the court hereby de~iea the said motion for reconsideration, and maintaipa its Order of August 10, 1969.'' (an nex B) Hence the filing of the inatant p~ition. The petitioner contends that there being no written '1>nsent of both parties as required by section 1, rule 84 of the Rulea of Court, the respondent judge committed a grave abuae of . discretion in ordering that the ero1a examination of ita witnesses and the reception of the reapondent corporation's nidenee in Civil Case No. 36118 be made before a com.misaioner, and in neglecting or refusing to do his duty as enjoined by law. On the other hand, respondents maintain that the agreement entered into by and between the parties In open C!Ou1t, which agreement was incorporated in the controverted order of August 10, 1969, is a 1ubst.anttal compliance with the p1"0"rision of ·the section aforecited, which provides: "By written consent of both parties, filed with the clerk, the court may order ani or all of the iuues in a case to be referred to a eommiaaioner to be agreed upon by the partiea or to be appointed b7 the court.'' Indeed, there was no w1·itten consent signed by the parties filed with the clerk of eou1-t in Civil Case No. 86118; but the parties therein having manifested to respondent judp in open court their agreement to the continuation of the proeeedinp before the clerk of court, and the same agreement having been inC'Orporated. in the order of August 10, 1969, we are of the opinion and 10 held that the pl'OYision of section 1, rule 8', Rule9 of Court, cited by the petitioner, has been 1111batantlally complied with. Consequently, in issuing the 01"der complained of the respondent judge acted perfectly in accordance with the mandli.te. of the law and he did not • eiommlt any semblance of an abuae, much lesa IJl'ave abuae, of dilC'l'etion; nor did he l'efUSe or nee-(Continued on pag~ 68) 60 LAWYERS JOURNAL February 29, 1960 RECONSTITUTION OF COURT AND OFFICIAL RECORDS GENERALLY* PUBLIC ACT NO. 3110 (Effective Mareh 19, 1923) Section 1. Records o/ Court of First Inatama tH.Woued: duty "-' """'~ As soon as praetit!able after the oceurrenee of any fire or other public calamity resulting in the loss of all or part of the records of judicial proceedtnp on file In the offit?e of the clerk of a Col.rt of Fi:rat Instance, said officer lhall send a notice by registered mail to the SeeretarJ of Justiee, the Attorney.General, the Direetor of Lands, the Chief of the General Land Registration ·Of. lice, tho clerk Ot the Supreme Court, the judge of the pl'07inee, the regiatei· of deeds of the pl'OYince, the proYineial fiscal, and all lawyers who may be int"ereated. stating the date on whteh such fire or public ealamity occurred and whether the loss or destruction waa total or partial, and givinl' a brief Hat of the pro~inp not affected in cue the losa or destruction was pal'tia:L REFERENCES: In general, see 34 Am Jur, Lost Papers and Reeords. ANNOTATIONS 1. Thia A11t iMppnc.blti to Public Sen1UCommiallicm records. Reconstitution ot,.reCorda of proceedinp before the Public Service Commission is gov9rned by the provisions of Commonwealth Act No. 146, D.ot by thi8' Act. Re Gregorio, '1'1 Phil. 906. J, Fa.iluf'e to give required notiu•. Where it does not appear that any of the notieea. required by Seetion 1, 2, and 3 of thi1 Act were given in connection with re. eonstitution of the reco1'da of a case, the laclc: of notice to the adverse party and non-compliance with the statutory requirement.ii •itiate the reconstitution proceedings and .. render an order declaring the record reconstitution ineffective, R•rJff 11. Pecson, Phil., 47 Off. a ... 6183 (#L-28'19, 19150l. ' Section 2. - Notice to persona in.teNat.d. .... Upon receipt of the notiee mentioned in the precedng section, the court shall iuue or ea.use to be issued a aeneral notice which shall be addressed and sent by ieeiatered mail to the law. per.s and officers mentioned in the ftreceding section and to such other persons as might be interested, advising them of the destruction. of the records, with a brief list of the proceedings not affected. in ease the destruction was partial, and of the time find by this Act for the reconstitution of the destroyed records. Thia notice ahall also be publiahed in the Official Gazette and in one of the newapapers most widely read in the province, once a week, for four eonsecutive weeka. ANNOTATIONS 1- Ef/eot of faAlvre to giw reqwired notices. Where it does not appear that any of the notices required by Section• 1, Z, and 8 of thH Act were given in connection with J"econstituiion of the ' records of a case, the lack of notice to the adverse party and non.eomplianee with the statutory requinmenta vitiate the reconstitution proceedings and render an order declaring the l"fleord reconstituted ineffective. Rep• "· Peoson, PA.ii. 4'1 Off. a ... 8188 (#IM'19, 1960) Seetion 8. - Application to t"tcot&Stitute rwcord in aivil oau; no. ffoe to others in.terntetf. The parties to civil casea, or their eounseb, shall appear and file, within thirty d&J'• after having been notified. in ucordanee • In view of the numerou1 request•. from our aublCl'ibers, particuJarlJ' thou .from the provineea of Cavite and Abra whose eonrt recorda were destroyed by fire, we are publishing herein the Law on Reconstitution of Court and Official Record1. v.ith the next preceding section, an application for the reconatitu· tion of the records in which they are intereeted, and the clerk of court, upon receiving 1ueh application, shall 1end notice to all partiea interated, or their coun1ell, of the da7, hour 1 and place when the Court will proceed to the reconstitution, requestill&' them to preaent, on aaid day and hour 1 and at said place, all copies ol motions, decrees, orders, and other documents in their poaaeaaion, having reference to the record or. ~rd• to be reconstituted. ANNOTATIONS 1. Nature a.nd put"JJOse o/ reconstitution. proceedingsProceedinp for the reeonstitution of judicial records an not .. strictlJr speaking, judicial, but ra'thei administrative in charaet:ei·, the main purpose being to see that a judicial record is restored to status quo and no issae affecting the merits being inwlved. Rodrigo "· Contor, Pit.it (#L-4898, 1952). I. R'if1Nd11 ""4• avoiW'l• to cmy interested "°'"71. . iWhere the records of an action or proceeding have been des. troyed, the remedy of a117 interested party is to file a proper pa. tition for reconstitution. Jamoro 11. Bhmeo. 68 Phil. 49'1, 44 Off. Gu. 8832 (#L-1181, 1947). I. l'l&GbilU,, to produee cmr pllrt of the nt:Of'd; BU/~ of 1Ul"dl stGtement concteniing .it. Where the party seeking reconstitution of the record in a ease wherein the recorda have been destroyed is unable to locate or produce the pleadings, orders, and other documents, or authentic eopies thereof, or to obtain an agnement on the facta from the other party as contemplated by # 4 of this Act, his m~ , "statement" as to what the pleadings were, and the like, cannot be accepted, and the onbr course open ls a new tJ.ial on new pleadtnga and proceedings aa contemplated by #SO, ct. Canmgt:O'l&fl v. Cojuaneco,. Phil. (#L-3761, 1951). .f.- • Reoonatitution inef/eetiv• tmle88 nquired noffH trivn. · Where it does not appear that any of the notices required by Sections 1·, 2, and 8 of this Act were given in eonnection with reconstitution of the records of a ease, the . lack of notice to the adver1e partJ" and non-compliance with the statutory requirements vitiate the reconstitution proceedinga and render an order declaring the record reconstituted Ineffective. Reyea •· Peeson, Phil. 47 Off, Gu. 6138 (#L-28'19, 1960). Section 4. - Metkod of t"'HBtGllU.lt.ing 7"eoo-rd in ti11il ca.ae. CiWI C$88s pending trial shall be reconstit'u.ted by m-. of copies presented and certified under oath as correct by the counsels or the parties Interested. In caae tt ts i~poasible to find a eopy of a motion, decree, order, document, or other proceeding of ..-ital importanee for the "reconstitution of the record, the same may be replaeed by an agreement on the facts entered Into between the counsel.s or the parties Interested, which shall be reduced to writing and. attached. to the proper record. ANNOTATIONS 1. Limited objective of reeonatltution proceecilnp. 2.. Sufficient basis for reconatitution. 8. Proceeding on recollection alone, without reconstituting the record. 4. Admillion of additional documents and papers. 6. Proeeedlnga subsequent to judgment a1 subject to reconstitution. 1. LimiW objective of nconatitu:tion proceedinos. In a proceedings for reconstitution of the record of a caae, the FebJ"\1&17 29, 1960 LAWYERS WURl!fAL 61 concern of the court and of the parties is that the doeumente pre&ent.ed as a baaia for reeo1iatitution are authentic and really part of the record, not question of law aa to their effect, which atUl remain~· Gomalas v. Ysip, 77 PliL 661. •. 8"/µ.i ... _., .............. ,; .... Reconstitution does not necessarily require verbatbD eoplea of all parts of the record in question, and parts of it may be supplied b:v stipulation of the parties, if they can agree, or by flndinp of the eourt dearly showing that some required step, auch as the service of notice of judgment on the attorne:v for the defeated party, was duly had. Del.i'llG 111. Stwtiva, Pit.ii. 48 Off. Gu. '889 (#1Afli4, 1952). a. Pf'oc8'ding on ncoUecUon lllon_e, wit/tout neoutih&ting o/ ncords. . Where the l'fCOrd• in pending Intestate proceedings were def!'~ when the ·court house bur~, and the parties to the p1-0. .-dings, thou"K1f given ample opportunity both b:v the court of first inatanee and the Supreme Court to reconstitute the reciorda, made no attempt to do ·so and iDstead inatituted and diligently went ahead with entirely new proceedings, it was beyond the power of the cou11; of first instance to reinstate the old proeeedinga and insist upon going ahead therewith on· ~he basb ~ the clerk's reeolldion of the records. Vcslcmnela. V. de Aguihw, Phil. 47 Off. G .... 780, 747 (# L-L-2262 and L-2480, 1949). -'· A~ of GdcUtioftal dociim.mta a2'd 'f14Pft.s. • Jn connection with reconstitution of the dqt1'0yed recorda · in a case, it is within the di~mi of the judge to allow readmi&"aion of documents and papers not originally produced by th8 i~ter eated parties because of circumstanees beyond thei1• control, fn order that the record may be completed and rial justice. done. Rodrigo •· Cantor, Phil. (#L-4898, 1952). 5, Proceedings .subs•fl"'U to judgment aa subject to nccmstih£Uon. · It is tnfera~le froin. # # 4 and 7 of this Act that judl~ records ma:v be reconatitut:ed without ezception, and ~ is ac· eordingly no m.erlt \ti a contention that proeeedinis sub.sequent to _judgment may not be reconstituted. Erla.ngwr & Gali.tiger, ltu:. v~ l!lo«l'dB, Phil. (#L4782, 18158). Section 6. - Pf"ocodut'6 if parli•s unable to agr••· In case the ·counsels or parties are unable i0· eome · to an a1·pment, the Court shall determine what may be proper.: In the interest of equity and justice, and ma:r also consider the · pro· ceeding · in question aa non.ezistent and reconstitute only that part of· the record· which can stand without sueh proceeding, and continue _Proceeding upon the record so reconstituted. . ANNOTATIONS l •. Adtniarion aa atn014ntino' to .,,..61Ut&t. In a reconstitution proceedinl', an admission made b:v one of the parties to the effec;t that there had been ju~t and exe~ tion of judgment is not nullified b:v the circumstance that it; Is made .without prejudice to challenclng the •alid~ty of the proeeeding. Azotea v. Planeo, 78 PhD. 789, 44 Off. Gaz. '88 (#L-962, 1947). Section 6 - 2'e1timml.g anad.g taken. Ter.timony of witnesaea taken in civil cases 1hall be reconstituted bJF means of an authentic copy thereof or a new transeript of the stenographic 'notes. lf no authentic· copy can be obtained and the stenographic notes · hBTe also been destro7ed, the cases shall be tried de novo aa if called for trial for the first time. ANNOTATIONS l. Additional t,.timon.fl. In view of # # 6 and 7 of this Act it was held that where the record of a caae was de.-trored by fire but an 4HJthentle copy of the 01·glnal cleci&mn waa In extatence, the evidence waa to be reconatructed. ·bf ·retaJdnc only teatimon7 of those w~ testified at the 01iglnal hearing, and it was no abuse of discretioh to deD:J an ap.. plication for introduction of the testimony ·of additional witnesses. Madaltmg e. Court of Flrst lmtaftoe of Bo.m6lon n cl.llslbae ·(191!6). 4Q· PMI. '87. See. '/, - Decilion. lf a civil case has already been decided, the decision shall be reeo.~tuted. b,. m~a of. an authentic copy. Jn case an authentic cropy cannot be found, the Court shall make a new deciaion, as if the case had never been deeided • ANNOTATIONS J, U-nauth.enticated con of d'eddon as bari8 for e:cecu.tioK. lt vraa error for a judge. of First Instance to order ezecution of a judgment merely on the basis of an unauthenticated copy. of what purported to be the judgment, the original records in the case having been de~, but· authenticated copies being .tn . ..ezlatence of notice of· appeal and bond on appeal to tlie Court of Appeals, without satlafactorJ proof of the final and executory nature of. the judgment. lbaii.ez v • .8an"'ioa, 77 Pltil. 186 (1946). ·,. Disct"Btion. to den11 ta.king of cufditicmsl i.mmonv '°"""" autAmtic con of. decision Jll'O(fuced' . An authentic eopy of a decision, the original of which waa deStroyed by flH, beinc available, it was no abuse of discretion for the court, after reeonsti-ucting the deeision fl'ODJ. such copy, to deny an application for the introductioit of testimony of additional witnesaea. Madalaag 111. COUt'i of First lmtance of Bomblon alld Mal,_ (1928) 49 PM!. 48'1. • I. BHOMtitution of proceedings 8K&sequent to iudgmnt. It la inferable from # 4_ and -, of this A.ct that judicial records may be reconstituted withoUt aception, and there is acmrdlngly no merit in a contention that proi:eedinp subsequent to judgment may not be reconstituted. Erlang.,. &: GGlin;.,., Im:. 111. E:cconde, Phil., (*W'l92. 1968). Section 8. - Reconl• in spuial proc.,d'itis/s. Special proceedinp shall be reconstituted in the 1ame manne1· as ordinary civil cases, witli the ·sole addition that a copy of the statement to be made bY tlie parti8a or their counel, aettinc forth .the statua of the proceedings at the time when the fire or othe1· 11ublic calamity oeeurred, shall be attaehed to the reconstituted re cord. Section 9. - R•cortla in ·land ngistration procceditigs ••.... · · Registration proceedings peiiding the issuance of a decree sliall be reconstitu.ted by means of copiea furnished. by the Chief of the General Land Registration Office. It ahall be the duty of this offfeer, inunediately upon i-eceipt of the. notice provided fOr in section one of this Act, to direct duly certified true copies of all destro)'ld reptration proceedinga pending at .the time of the destruetlon, ·and of all decrees destroyed, to be sent to the clerk of the Court of First Inatance concerned. · CROSS-BEFEBJ!JNCJ!h IAl.ter legislation as to l'eeonstitution ,of land titie certificates. see # 94 et seq., infra. ANNOTATIONS J. No nconatitution of owner's eeriificat• unltl.ss •/town to bf !oat or deRt:ror1ed'. Where it was not contended that the owner's duplicate certifi. cate of title to the propetty in question was lost or destroyed, no useful purpose- wOilld be aeDVed by instituting proceedings under A.Ct No. 8110, as amend8d by Republte Act No. "26, for the reeonsti· tution of documents which were lost or destroyed after submia81on tO the Register of· Deeds of Manihi. for reeistration, aa they could not be registered, under # 57 of Act No. 498, without production of the owner's duplicate title certificate for cancellation, aa sought by independent suit. Heitscm v. J. K. Pickering 6 GO., Pl&U., f#.1'.8440, 1961). ·Sectiou 10; - Becorcfl it& oadcMtral proceedings. Pending cadastral ea.1es ·lhalll be reconstituted as follows: The Court shall i1aue an order directing the penona interested to file anew their· replies, for which . purpose rea.Gnable time ma,. be allowed. The order shall be published in the· Otttcial Guette and by local ~ces d_.,ng a period fixed iD said order. . Immediately .upon receipt of thi: notice pnvided for i.n seet;ion one of thla Act, the chief ·of the General Land Registration Office 62 LA WYERS : JOURN'AL Februa1'7 29, 1980 shall came dub' certified true eoplea of all deatroyed eadastral proceedinp to be sent to the clerk ot the Court concerned. The new replies filed by the parties intereated and the copiea furnished b1 the General Land Bqistratlon Offke ahall form the reconstituted record. Section 11. - Offi,ml coo~ Sn. n·Htablilli.ing reoonU it& land ...... The Director ot Landa llhall eooperate with the Chief ot the General Land Registration Office in :furniabinc eopiea ot the plana, certificates, reporta, and other documents necesaar,. for the re. constitution ot destroyed regiatration or eadaatral proceedinp. The expense ot ·the reconstitution ot auch reeorda ahatl be reimbunable to uid Bureau and office out ot the public calamity or eaiergenq' fund1. Stetion 12. - lnabilit11 to 7"flCOftBlitute ttcord in ltmd caus; proce. dun. In case thei-e ta anythinl' in the registration or cadastral proceedings which cannot be reconstituted by means ot the pro~ure provided for in sections hine and ten hereof and whieh is ot vital importance to the interested partl•, the reconstitution procedure eetabllahed for ordin&l'J civil casea shall be used. Section 18. - Criminal CGBe reconb. Pending criminal actions shall be reconstituted by means ot copies filed by the fiscal and. the counsel for the defendant or the defendant himself, or erertified b7 them under oath as being cor'-9Ct, and whatever en.not he reconstituted in this manner shall be reconatru:cted by mean1 of the supplementary procedure providocl for ·the reconstitution of orl:linary civil cases. ANNOTATIONS I. Riglit of counl /01' ol/tm.tled. JH'rit' to 88fls nocnutitKtion. With respect to a charp of adultery inllti~ted. during the Ja. panese ocC'llpation, the record havlnl' been destroyed, the attorney for the offended part.7 was entitled to apply for reconstitution ·of the record so that the proceedings could go forward. Herrero "11. DU.., 76 PML 489. . Section 14. - Testimony or doavments·ru nidnu:e in. criminal Case dntrou«L - The· teatimony of witnesses, if an1 has already been taken, ahall be reconstituted by means of an authentic eopy thereof 01• by a new tranacript ot the stenographic notes; but if it ia imposaible to obtain an authentiC' cop1 of the evidence and il the stenographic notes have been deatr()J'ed, the caae shall be heard anew aa if it had never been tried. Documentary evidence shall be replaced by secondary evidence. Stection 16. - Deaision in criminal ecue. If the cue baa alread7 been decided, the decision ahall be reconstituted by means of authentic eopy. If an authentic cop1 Is not obtainable, the cu, shall be decided anew, as if ii had never been clccided. Section 16 - EWlena of prelimiurr invntigation. A dub' certified copy of the proper entries ot the. docket of the justiee of the peace court concerned aball be attached to the re· constituted record and shalt be auffiC'ient evidence that a preliminary investigation was held. Section 17. - Fiacfirs nconls de11tropd; dutiu; noour•e to otAetNconia. In case the recorda of the office of the provincial fiscal have also been destroyed, said provincial fiSC'&I shall aacertain the criminal actions pending in the Court of First Instance and may for tbia purpose make use ot the data obtainable from the dockets of the juatice ot the peace courts ot the province, the reports of the provinaial commander of the Constabularyi the racords of the vrarden of the provincial jail and ot the municipal police, and from any other sources that might be of a1Siita"ftce to him in the investigation. Section 18. - ln11estigation of fa.ot11; making up t"eoonstituted nccnl. The provincial fiacal shall in"8tigate the facts in each pend. iftl' criminal action, and if he ebould find euffictent merit.a to sustain the aetlon, he ehall without loaa ot time file the proper in. formation which, after being registered, ahal, together with a certified copy of the proper entries In the docket ot the justice of the peace court eoncerned, if &nJ', fonn the reconstituted record. which ahall be uaed. as point of departure in the continuation of the proceedinp. Section 19 - Motion. to cfismi.s, wln nthorUed; procec:lun. If the provi.neial fiscal does not find aufflelent merits to auatain the accusation, he •hall present; to the court a motion for dimiliaal, specifyinc all the facts of .the case and all step.a taken by him in the investigation required In aection seventeen hereof. Thie motion for dlamiual, after beinl' registered, shall, tocether with .a aertit'ted copy of the proper entries in the docket ot the justice of the peace court concerned, if •"DJ', form the reconitituted recot'd, which shall be used as point ot departure in the mntinuation ot the proceed.Inn. Sec. 20. - Evidmoe alnfJdJJ Cllkn; raprodtldion of infof"mation. If the provincial fiscal finds. that evidence has already been taken in the caae, which baa not been destroyed or which ean M 1-eprod.uced b7 a new tranaFfptlon of tha proper stenographic notiel, he may, in view of 8llCh evidence, enter into an agreement witll the defendanta or their counsel, the Court. tn 'riew ot the evidence, aball determine in what t.enna the information ahall be reproauced and shall aive the defendants an opportunity to file a cleo murrer against the information so ieprodueed 01• introduce addi· tional evidence. . · If the defendants have no counsel and state to the Court that; they desire one, the court ahall auign to them a counsel who shall represent them in the proceedings for the reproduction of the information. Section 21. - Proceduu on ~ infonnaUon. Upon the reproduction of the Information in the manner aeti forth in the next preceding section, the defendant shall be informed thereof, and if be enters a plea of not pilty, the proper hear. inl' ahall ba held, tn which shall be admitted all evidence pnrriousJ.1 introduced and such additional evidence, if an,., aa ma1 be lawfulb' offered by ~ parties. Sectioil 22. - Deoi.W" of CG88. If the ease bas alreadJ been decided, the decision ahall be l'eo constituted b7 means of an authentic copy, and in case it ia im· poasible to obtain an authentic cGp71 the ease shall be decided anew, as if had nevei• been decided anew, as if it bd never been decided. Section 28. Preferred ccuea. The provincial fiscal shall give absolute prefercmco to the re. conatitution of criminal action& in whieh the defendants are con· fined awaiting declaion, and shall act with all possible dispatch. Section 24. - F.,.,,.Z nrpiremeute for uproduced infonnations. All informations reprodUC!'ed by the provincial fiscal ahail be entitled ' Reproduced Information," and at the end thereof ahall appear the date on which they were actually reproduced and a atatement to the effect thai they were reproduced in accordanere with the Provisions of this Act. Section 25. - Records on apfHlll or fO'I" review; u88 of copies if ....ual>l<. The records of civil actions, special proceedings, and registration and cadaatral proceedings which at the time ot their destruction were ready to be sent; to the Supreme Court of the Philippine Islands on appeal, shall be reconatltuted by meana of an authentic copy of the bill of exceptions or appeal record, which, together with the reconstituted evidence, ahall form the reconstituted record for the purposes of the appeal. Section 26. - l't"Oc,edut'e in. oebr caaos. If it is not possible to obtain an authentic copy of the bill ot exceptions or appeal record, or tf the ·evidence cannot be reeonati· tuted, the records referred to In the nezt :IJrecediti.I' section shall be reconstituted by means ot the other procedure eetablished fn the February 29, 1960 LA WYERS JOURNllL 68 p1-eceding. sections. Seetion 27. - Criim.Wtal sppmla. The recorda of criminal aetions which at the time of their destruction were ready to be sent to the Supreme .Court of these Islands on appeal, shall be reconstituted in the manner eatabltshed in sections thirteen to t"nDtJ'-four. At an:v eftDt, if there shall be any question as to the appeal reeord or the time within which the aame was filed, the court may authorize the defendant to reproduce it within a reasonable time. Section 28. Original dod:1t tm6"N, oontf'olUng •lfeot. In eaae ft has been posaible to aavo or praerve tho doekets of the clerk's office relative to the civil actions, registration and cadaatral proceedings, Cl1.minal actions, and special proceedings, destroyed, which were pending at the time of their destruction, the entrtel in said dockets shall be proof of the judicial proceedings therein made of record and shall prevail over any agreement entered into between the parties or their counsels. . Section 29. - Fa.ilure to ·"" neonstitution of retm'CI; right to filtl """ anfions. In ease the partiea interested in a destroyed i·ecord fail to p.iition fOr the reconstitution thereof within the six months next following· the date on which ·the:v were giftll notiee in accordance 1rlth section two hel'eOI, they shall be understood to have waived the reeonatitatlon and may file their respecti:n actions anew without. being entitled ti> dla.im the benefits of sectnon \hfrty~e hereof. ANNOTATIONS 1. Dutil to ae-11 ~titution. t'ftfs on both. pcwtks. Once the record of a case is destroyed. or lost. the duty of having the same reconstituted. devolves upon both parties, ao that the omiasion of one party alone to ask for reconstitution should not be construed aa an abandonment of the case. LitJll.auCo 11F Lucem, Pli.U., 47 Off G .. 8644 (#L'lll .. , 1950). The duty to ask for reconstitution of destroyed records in ,a caae reSts upon both pa1tie1, and although, during the time when the reeord could have been recon1tituted, no adequate 1tepa were taken by either parl;Jr to that end, defendant was not entitled to invoke the rule of eatoppel by judgment against plaintiff by realOD. of ht1 failure to have the record on appeal from. s,uch judgment reconstituted. In such a situation, this aection applies. Clt1rii:b:l v. Novella, PAIL (#I,.j2q/• 1912). S. Can• pending cm opp1t&I. Thia Act i1 divided into parts dealing with reconstitution of records at n.rious stages of the proceedings. Where the records in a court of firat instance remain intact, but the records on an attempted appeal were destroyed, the parties are not remitted, under this section, to a new trial, but only to a new appeal, and it is error to dismias the appeal on the score that the i'eCOl"d waa not reconstituted in1 time. Na.ot14 11. lntntate Eata.t• of Alo, - Phil., - ( # IA983, 1963) , piodi!Jinc prior decisions. Where a case was pending on appeal to th~ Court of Appeals at the time of cleatruction. of the record•, 'and only tboae in the Court of Appeals were dutro;ved, not the reerorda of the court of first instance,. which l'ell\&in tntatrt and avallable, the parties are not remitted to a new action, but only to reconstitution of the appeal or a new appeal. NIJOua. v. Alo, Ph.ii., 49 0/1 Ga 8853 (#L49933, 1963). Where a pre.war case was pending on appeal from one judgment therein to the Court of Appeals at the time the record was destroyed., either party could seek reconstitution of the record and it was not ineu.mbent on one of them to make such an application any more than it was on another. If no.one made application -.1thin the allotted time, the judgment failed to become final because of pendeney of the appeal, the right to reconstitution must be considered waived, and the partiea were remjttecl to new litiption. Ambat 11. Director of Lands, Plril.., 49 Off Gas 129 (#L104Z, IJl68). . 8. Criminal CflHB, Where the reeorda are deatrored in a criminal caae, it is aa much the duty of the acci:lsed as it is of the prosecution to see ·that thQ' are reconatituted and that the case la disposed. of; and if the aceuaed takes no steps to thta end, be is not in a position to eom.plain of want of a speedf trial, nor, the· case never having beeri decided or disposed of, that he ts placed in double jeopardy by reconstitution of the records and ping .aheld with the prosecution i~~ part of the filC'al. People 11. 0.ptam., Ph.ii. (#L-4396, 4-o Motion. to dilmisa nConstitutiion. pt"OOflldin.gs GI abandotao .....t A motion to diamisa proceed.ton for the reconstitution of the record in a case does not necessa1•il:v amount to abandoriment of an appeal from the judgment In such ~se. Section 29 of this Act does not remit the parties to a new ·action if reconstitution· prOceedinp are started in due time and the pleadinga and decision are produced, m.erel:v because oral and documentary evidence is missing; the proper procedure in 111ch case is to move the appellate court ~i~~.:~;:,a;~c;;.new trial under, #6'- Media v. Bemcibe, Se~ 30. - New aotion. if f'BCom: c:an.not be niconstitutul.. When it shall not be poaaible to i-econatitate a destroyed judicial record by means of the prqcedure established in this Act or for any reason not henin provided for, the interested parties may file their actions anew, upon payment of the proper fees. and 811ch aetions ahall be regl1tered as new actions and shall be treated as 1uch. • ANNOTATIONS 1. Wltn new Cldicm -1uction.ed or niqirired bw this 11ction. The eommencement· of a new proceeding should not be coun~ tenanced unless it is definitel;v demonstrated that the lost judicial records cannot be autticiently fteonatituted. Abellem v. Gcwoia., PAIL, 47 01/ Ga. 2908 (#L-2401. 1949). When the record in a pending c;aae has been destrored and eannot be reconstituted, t;Jle only practical solution is to permit the filiftl' of a new action, aa provided in this section. MtJOG.. piula.c v. Court of Appeals. Ph.ii., (#L-02400, 1950). s. lnauf~ of 11tt.mpt to n1oon1titut1 nioorcl. Where the court finds an attempt to :reconatitate the record in a pendin1 aetion insufficient for failure to produce the pleadings or other pertinent documents, or authentic copies hereof, or obtain an agreement on the facts, the plaintiff's mere statement, In a aocalled "complaint" in new proceedinn under # 30 of this Aet. as to what the former pleadings contained and what transpired up to ·the time of destruction of the recorda, will "not suffice a8 a :;:~: ~~~1~rthe1· aetion, de CcminOoong v. C!'iUtlHflco Phil., (#LSection 81. - Limitations sttd preaoription period if records de•""°u<d. For all legal effects, the time that has elapsed from the initia. tion of the destroyed. record until the date when It.a reconstitution was declared impossible, ahall not be counted against the interested party or hta heirs and other auccesaors in interest. ANNOTATIONS 1. Ptior action. a, tolling Umittltions toklt"ll f'4!001'tl tlntiro111d. The effect of a prior action erommenced on the same cause of action aa tollin1 the statute of limitations is lost where the record in such case is destroyed. prior to ~inal termination and not re. constituted or retnatated, as the prior action muat, for that reason. be considered aa abandoned and aa thou1h it had never existed. Jtwdefo 11. JDll'fUr, Pli.il., (#L-4626, 1952). Section 82. - Regidra.tum lln.d dook.Ung of recoutituted cases. All reeon1tituted civil and eriminal aetlons and special proeeedinga and tboae initia1led anew &fter the calamity, shall be registered and entered in tht respective docket and shall be numbered c:onaeeutively in the ehronoloe!Cal order of their reeonatitutlon and filing, Reconstituted cases shall be numbered with figures preceded by a dash and capital letter R. ANNOTATIONS 1. Appealabitu, oJ onlw noondituti'n11 reccnod LA WYERS JOURNAL Feb'ruarr 29, 1960 An order for reconatitution of the reoo1·d in a case la int.erlocutory and not appealable. Funitebelltl "'· Oosmpo, 80 Phil., 56.2; 46 Off Gu 8-. 9 p. 178 (#L-1762, 1948). Section 38. - Reatomtion to origirlcll status 10het"e podible. ·1 In case it has been pos1ible to aau or preserve the dockets ot the civil and criminal actions and special proceedlnp, the reconatituted records shall be numbered a8 they were in said dockets, with tlle sole addition of a dash and a capital letter R preeedinl' their respective numbe1:11 and without prejudice to their bein1 re&"istered and entered in the "Doelcet of R.eeonatituted Cases" prescribed in section ihirtJr-five hereof. ANNOTATIONS 1. Reconatitution. of noonl GB preoludit&g ...U.f ,..,,.. iud ...... ~ Reconstitution ot the record in a ease does not preclude a party :from seeking relief from the judgment therein in the mannei· proyided bJ' the. Rules of Court. Gon.•les •· Yaip, 'l'l PML, 661. Section 34. - £and nigiringtion. cmd oadastnd )Jf'Ocudings. . Reconstituted registration and cada4tral proceedings shall be registered and entered ID their reapeetive docket under the same numbers they had before the calamity occurred with the sole addition ~ a dash and a capital letter R, preceding their respective number& • Record.a of a like nature presented aftelT the calamity shall take the numbers of the destroyed and reeonatltuted recorde. Section 35. - Specilll tloclHt. • Independently from the ordlnarsr doC'kets for all criminal and civil actions and special proeeedlnga reconatituted. 01• newly filed, • the clerk of the court shall open a a'peclal docket for all reconatituted eases which shall be denominated "Docket ot Reconstituted Caaeo." Section 36. - Certifiotdion of special dooket. On the fint pages of the "Docket of Recon1atituted Ca1ea,11 the clerk of the court shall spread a certificate setting forth that notice waa duly stven as required In aeetions one and two of thts Act, tranaeriblng the same in fuJI, and shall paste thereon a coPY of the publication in a newspaper of the notice prescribed in section two, with the Statement that sueh publication was also made in the Offielal Gazette, and specifying the volume and page number. Section 3'1. - Notations to 11ppeor in apecicd dooket. All civil and criminal actions and special proceedings l'eCODI· tituted in aecordanee with this Act shall be registered and entered in the "Docket ot Reconstituted Cases" and shall be giftll the same numbers unde~ which they appear in their reapeetive ordinary dockets, and in the entry of each ease mention shall be made ot the agreements and all other proceedinp had for the reeonatltution of the record, and, if 11oasible, the register number which it bore before the fire or public calamity aball be atated. Section 88. - DookeUng of ngiskution. and cadGBtml proeffdin.gs. Reconstituted reliairation and cadastral proceedinp shall not be :registered or entered, but briefly noted in the "Docket of Ret'OllStituted. Caaea.11 . Section 39. - Notations in apeoial docket if .,..eon! not reconstituted. In caae of the failure of the reconltitutlon of a record,· the clerk of the court shall make a etatement ot this effect in the "Docket ot Reconstituted ·Cases," setting forth all the proceed.Inga bad and the order of the court declaring auch reconatltution to ban ·failed. Section 40. - Where reeonatitution rwoaeedings to •• dooketed. The proceed.inp for the continuation of the reconstituted re.. cord shall not be spread upon the "Docket ot Reconatitutecl Caeea," but upon the rupective ordinary dockets. Sdlon 41 - Su.tpen.rion. of terms ox deatni.cticna. of Neonl&. All terms fixed by law 01• regulation shall ~ae to rnn from the date ot the deatruetion of the records and sb&ll onb' begin to run again on the date when the parties or their counsels shall have received from 6e clerk ot the court notice to the effect that the reeorda have been reconstituted. ANNOTATIONS J, ''Terms'' nferred to. The provision ot this section that all terms shall begin to run on the date the pai'tiea have notiee that the record baa been recontltuted refers to the terms fixed b;r law which were alrudy running when destruction of the record Oo:?urred. VelMCJUff v. Ysip 70 PAil 6'16, 46 Off o .. 2079 <#L-1469, 1947) Section 48. - Rsnewal of bonds. All bonds executed in civil and Criminal eaaes and special pre. ceedinp shall be renewed as soon as the respective cases have been duly reconstituted. Section 48. - Partial deaheffsot. of jitdieiat f'8oords, application. of Aot. In case of the partial loss or destruction of a judieial record, the destroyed portion may be reconstituted. In aecordanea with the provisions of this Act. ANNOTATIONS 1. Reconstitution. of entirs nf:oni not neees8flt'J'. It is not necessary, for reconstitution of a destroyed record, that all the papers be reconstituted, and it was accordingly not error tor a court of fint instance, to which an ejeetment eaaa had been appealed, to hold that the record was sufficiently reeonstjtuted on the basis ot a copy of the deciaion, without reference to the pleadina and other papers. Sa JoBS v ds Vene$, '79 Phil '646, 4& Off Gao 20'78 (#I-1164, 1947), Although 888 out of 908 exhibits used In connection with trial of a caae were deltroJed by fire and could llot be reconstituted, where such deatruetion took pla~ after decision in the lower court and while the case wu pending on appeal, and the findinp of fact of the lower court were undlaputed, It was uruieceaaary to re. sort to a new action and the appeal could be proceeded with. fhsv v. lnn&lar Lumber Co., PhiL, 49 Off. Gtu 485'1 (#&85, 1968) Section '4. - Records dtlat:ropd or lost ot.\st- . . 6rt firs or J>K6. lio calom.itr, applicstion of Act. Judielal records destroyed or lost from cauaes other than fire 01· public calamity may alao be l'eeonatituted In aecordane9 with the provisions of this Act. Section 46. -· Other provisiou not f'8J)ealed. Nothing contained in this Act shall be eonstrued to repeal or modify the proyisions ot aeetlon three bUDdred and twenty.one ot Act Numbered One hundred and ninety. Section 46. - Cl.erk of C01Wt's dutp to nots nGms. of atf!IROg-rap1t.en an.cf ffnd copies of oriminal decisione to provfnoial """"" It shall be the duty of the clerk of the court to state in the proper doclr.etl and In the minute. of the aeuions ot the court the name• ot the stenographers who have taken note ot the evidence introduered in the caaea tried, and to send to the provinci,p.I fil!leal full copies of tha decealona rendered by the court in criminal actions. Section 4'1. - hooineicil fisu.l to keep eOl'Ns of iltfonMtions cmd deciftons. It shall be the duty of the provincial fiscal to keep authentic copies of all Informations filed by him and of all decisions sent to him by the clerk of the court. Section 48. - JuaUt:s of tM peaoe court neot"d8 deatrored; pro. , cedars 11etKnJll1/. .Justice of the peace courts, In reeonatitutinc the reeorda ol caaea pendtll&' in aaid eourta and destroyed bJ' fire 01• &n7 other 'public calamity, 1hall follow substantially and wherever pouible, the procedure eatablished for the reconstitution of records in the Courts of Firs~ Instance. Section 49. - NoUu to 6e givm. J uatice of the peace courts ab.all not be ·required to iBBUe the notice provided for tn aectton one hereof, but that provided for in eection two, which shall be addrened ai.d sent bJ reclatered mall to the pi"Ovineial board, the provincial ftaeal; the proY:inelal com- · LAWYERS JOUR.'l~L mander of the Constabulal'J', the municipal president and councilors, the local health officer, the municipal treasurer, the ehief of police, and the barrio lieutenants. · Provisions i'8ferred to: See Seca. 1, 2, this Title. Section 60. - Poding •Rd padlffcation. of n.otioe. CQpies of this notiC'I lhall be posted for ten eomecutive days In three public plaC!'eB of the polti.oion of the municipality, and in three public places In each and all of the barrios of the municipalit1. Such notice ahall, moreover, be published by 6cmdillo daring the ten days mentioned In the nm preceding section in the poblacion of the municipality and In each and all of the barrios thereof. Section 61. - Time to appt11 ffW reoonatitution. of n1cords. The parties to clYil actions or their counaela shall be given ten da11' time for applying for the reconstitution of the records of the csaea in wbich the}' may .be interelt.fd. Sdion 62. - Daffea of rwosecutf.ng officw. The dutiea imposed upon the. provincial fiscal shall, witli re. card to the reconstitution· of criminal actions pending in the jus. tice of the peace courts, be imposed upon the proper prosecuting offieer. Saetion 6S. - Special dooket f<w t'6conatituted cues not ·nquit'ed. It shall not be necessary for juatiee of the peace courta to open a special docket for reconstituted cases. Seetion 64:. - Sv:preme Court nconfs dutf'of/ed; gmemi· notice :to be 11iven. As soon as practieable after the occurrence of any fire or Qther public calamltJ' reabltinc in t'he loss of all or part of the records of judicial proc;.eedings on file In the Supreme Court, the clerk of said Court shall send a notice by reeistered mall to the Governor-General, the Justices of the Supreme Court, the Secretary of Juatlee, t)ie Attorney-General, all Courts of First Instance, the Director of Lands, the Chief of the General Land Registration Office, the Fiscal of the City of Manila, the provincial fiscals, and all lawyers who may be interested, stating the date on which 111ch fire 01· public calamity ocicurred and whether the loss or destruction was totai or partial, and giving a brief list of the proceedings not affected In case the loss or destruction was pat"tial. Section 66. - Notia to peraona in.tended. , Upon receipt of the notice mentioned in the precedlnC aection, the Chief Justice of the Supreme Cou1"t shall issue or cause to be issued a .general notice which shall be addressed and sent by registered mail to the lawyers and officers mentioned In the preceding section, advising them of the destruction of the reeords of tbe Supreme Court. with a brief list of the proceedings not affected in cue the destruction waa partial, and of the time fixed by this Act for the reconstitution of the deatroyed :ruords. This notice shall also be published in the Official Gazette and in one of the newspaper& most widely read in these Island1, once a week during eie'bt· eODBeeutlve weeks. Section 68. - Original oans pndin.g before, cOltf't. Application for the reconstitution of the records of cues of the o~nal jurisdiction of the Supreme Court shall be made within ais: months from the month in which the interested parties were notified in accordance with the next preceding section, and sueh reeonatitution shall be accomplished. by the same procedure as established for the reeonstitution of cues pending in the Courts of First Instance. Seetion 6'1. - Various civil proceedi:Jtgs. Parties interested in any civil action, registration or cadas- , tral proceeding, or special proceedinl' appealed to the Supreme Court may apply for the reconstitution thereof by filing, within ab. months' time, a petition accompanied by a printed copy ef the bill of exceptions or appeal record. Section 68. - Noties on ncftpt of ,,.eiHon. to tw0t&B6ihit• -reoon!. Upon receipt Of the petition mentioned in the next p1oeceding aectlon, the clerk of the Supreme Court shall notffJ' all iatenated parties and their iieapective counsels of the day, ·hour, ~ plaee at which the Supreme Court or ita commlaioner will proceed to the reconstitution, and on said daJ" and hour and at said place the pa~ or their counsels .i.an preaent to the Supreme eouri or its eommlllioner all papen they may have In their poueuion relative to the euu to be reconstituted. Section 69. - /lrlffs for tnakit&, up tl&e nconl. The cue may be reconstituted by meana of an authentic printed ~ of the bill of exceptions or appeal record, a copy of the . briefs if 8117 have already been presented, an authentic copy of the transerlpt of the ltenocraphic noies of the tertlmony taken an authentic copy of the judgment if •DJ" has already been n..;. ~o!:r ~u':n~ ~='i:'1Z': of the resolution, writ&, De.stroJed, documentarr evidenee shall be reeonatituted by means of ~dacy evidence which may be presented to any judge bf the" Supreme Court or any other officer commissioned by said Court, who may be the judge of the Court of First Instance from which the case eame, ANNOTATIONS .J, Pnscribff 6aeu 'for reoard as qclz&8ive • By providing, in # 159, for i-econatltution of the judgment and resolution of the Supreme Court by means of an authentic copy, and in # 80 that if ·no copy can be found the partiea shall aubatltute an asreement in lieu thereof, all other means of reconstitutinl' auch a reeord are excluded. Fra7&ciaeo v. tH Borja, PAU., (#L-11164, 1961). Section 80. - Agf'Betnen.ts of PM'tift and procedUf'B iA abacmce tlwre· of. If no copy of anY rea6lutlon, writs or othei· document of Yitai importance can be filed or found, the parties ahall sub· atitute an .i.greement in lieu thereof, and In default of snch agree. ment. the Supreme Court shall determine what mar -be proper in the intei:eat of equity and justice and may even consider the proceeding or document in question as non-existent and reconsti. tute onb" that· part of the ease which can stand without such proceeding or document and continiie the proceeding on °the basis of the l'ecord ao reconstituted.. ANNOTATIONS 1~ This,. Clnd tM pnoeding, HCtion Ga prescribing nclusiw methods. By providing, in #69, for reconstltntion of the judgment and resolution of the Supreme Court bJ means of an authentic cop1, and In #80 that if no copy ean 'be foUJld. the partie1 shall subatitute an qreement in lieu thereof, all other meana: of recon. atituting such a record are excluded. Fnmt:isco v. Borja, Phit., (#L-186', 1961). •• l'NJUf/iof,"71.t basis ,.,. ~nsUtuticm. The record of a ease which was pending on appeal to the Cou1't of Appeals at the time the recorda were destroyed could not be daclared. reconstituted generally, 01· even for the special purpose of showing the judgment whieh dafendants alleged to have satisfied by making a consignment of Japanese war notes, where all that could be resurrected was t'81"tatn papers relating to the attempted eonsignment and some miscellaneous documents. without any of the pleadings, ~nee, decision, or briefs, China. Tnsuraiu:e & Suntg Co. v. Berknkott.r, Phil., 46 Off Gu 6488 (#CM82; 1949). Secflion 81. - N.-w decision, token nquind. If an authentic eopy of the decision rendered by the Supreme Court la not obtainable, the case shall be decided anew. Section 62. - New briefs, when. nqidred. If It is not pouible to obtain authentic copies of the briefs already filed and the case was pendin1 decision at the time of the calamity, or If It 11 necesaary to decide it anew, the S\111reme Cou1't shall order new briefs to be submi"4d •nd. may p-ant reallODable time therefor. Section 88. - N81U lriU of ~ or f"flOll:lni. If an authentic printed eopy of the bill of exception.a or ap. LAWYEllS JOURNAL February 29, 1986 peal record is not ·obtainable or if the bill of exceptions or appeal record presented were dbout to be printed at the time of the des· truction, the Supreme Court shall direct the Court of First Instance concerned to order the preparation of a new bill of exceptions or appeal record and may grant reasonable time therefor. Seclion '64. - New transcript or retaking of testimony. If an airthentic copy of the transc1ipt of the stenographic notes of the· testimony ta.ken cannot be filed, the Supreme Court shall direct the proper stenographer to make another transcription. And if the stenographic notes taken by the stenographer have also been destroyed, the Supreme Court shall direct the pro. per Court of First Instance to proceed to hear the case anew, which Shall then be considered as ready for a hearing in said Court of First Instance. ANNOTATIONS 1. Demand Jo,,. new trial. Whe1•e the record, including the transcript of testimony, is cl.estroyed pending appeal from an order overruling a motion'. for new trial in a civil case, and the ease will be heard before a different judge if a new trial is granted and some of the original witnesses will not be avaiJable, the Supreme Court could properly limit the scope of a new trial, if it gTants one, but nee.d not restrict the issues and may, if it sees fit, remand the cause for new trial generally. J!Je Almario v. lba:iiez, Phil., 46 Off Gaz Supp I, p 890. (#L-2547; 1948). f. Demand for evidence does not sa.Mtion new proceedi111rWhere the trancript of evidence had been lost or destroyed and the Court of Appeals returned the case under this section io permit the plaintiff ~ reconstitute the evidence, the plaintiff had no authority to start a new proceeding without attempting to reconstitute the evidence. Abellera v. Ga.rcia, Phil., 47 Off Gaz 2908 (#L-2404; 1949). I. New decision "'n remand. This section governs reconstitution of the record and further proceedings where the record in a civil is lost or destroyed while the case is pending on appeal. If a new trial is being sought, the transcript of testimony has been destroyed, and a different judge, without any recollection of the testimony, will preside at the new trial, and some ,pf the original witnesses are no longer available, new and additional witnesses may be allowed and the court must render a new decision. de Almario v Ibaiiez, Phil., 46 40 Off Gaz Supp 1, p. 390 (#L-2547; 1948). 4. Motion to dintiss reconstitution proceedings as abandonment of appeal. A motion to dismiss proceedings for the reconstitution of the record in a case does not necessatily amount to abandonment of an ·appeal from the judgment in such ease. Section 29 of this Act does not remit the parties to a new action if reconstitution proceedings are stated in due time and the pleadings and deci11ion are produced, merely because oral and documentary evidence is missing; the proper Procedure in such case is to move the appellate court to remand the case for new trial ander #64. Medina 11. Bena.be, Phil., (#L-3036, 1949). ' Section 65. - Decision not appcala.ble or alrea.dy final. If the decision rendered by the Supreme Court is not appealable or has already become final, an authentic copy of such decision shall be proof of its contents and shall form the recon. stituted record, without prejudice to attaching thereto such copies as may be obtainable of the bill of exceptions or appeal record and the bri~fs filed .. Section 66. - Criminal cases. Upon receipt of the notice p1·ovided for in seetions fifty.four and fifty-five hereof, the Courts of First Instance shall cause a complete list to be made of all criminal actions appealed to the Supreme Court, which list shall contain the names of the stenographers who have reported each case. Copies of this list shall be sent to the provincial fiscal, the Attorney.General, and the clerk of the Supreme Court. Section 67. - Reconstitution ·by Court of Ffrst Instance. Upon the preparation of the 1ist · provided for in the nei.t preceding section, the Courts of First Instance shall proceed to reconstitute all crimi:hal actions included in said list, in accord; anee with the rule and procedure established in sections thirteen to forty.five hereof, and every time they declare any record reconstituted or its reconstitution a failure, they shall repOrt the same to the Supreme Court Section 68. - Sending up of 1"BC01lStitiLted Teco'l'd~ As soon as the reconstituted reco,rd is ready to be submitted to the Supreme Court on appeal, the proper clerk of eou1t shall send it, in accordance with the exixsting legal procedure, to thf' clerk of the Supreme Court, for further a:Ppeal proceedings. Section 69. - Whtat to constitute record in case of Teconstitution. In ease the Court of First Instance is successful in restoring the ·record to the condition in which it was when forwarded under appeal, such record, together with an authentic copy of the briefs, if any have been filed, and with an_ authentic copy of the decision, if any has been rendered by the Supreme Court, shall form the reconstituted record in the Supreme Court. Section 70. - New decision, when.t"equiTed. If an authentic copy of the decision rendered by the Supreme Court is not obtainable, tti. case shall be decided anew. Section 71. - New Briefs in ce'l'tain instances. . If authentic copies of the briefs filed are not obtaina.ble and the case was pending decision at the time of the calamity, or if ii is necessary to decide it anew, the Supreme Court shall direct" new briefs to be filed and may allow a reasonable time for this purpose. Section 72. - Cases al'l'ea.dy decided. If a criminal action has already been decided by the Supreme Court and the decision has become final or is not appealable, an authentic copy thereof shall be proof of its contents and shall fcrm the reconstituted record, without prejudice to copies of the information, the decision of the court below, and the briefs filed being attached to it. Section 73. - Procedure- afte'I' Teco'l'd Teconstituted. Civil and criminal actions, registratidn and cadastral pro. ceedings, and special proceedings pending appeal to the Supreme Court Of the United States shall be reconstituted in accordance with the rules and procedure provided for in the preceding seetions, and the· appeal shall take its course as soon as the reeon. stituted record is ready for it. Section 74. - Time e:Vtensions. In case there is any question as to the 8.ppeal record or the time within which the same was filed, the Supreme Court may authorize its reproduction within sueh time as it may deem reasonable. Section 75. - Regi8ter of deeds' Tecords destt'011ed; 'l'Bpo1·ting. When, as result of a fire or other public calamity, the documents, books, and files of the office of the register of deeds are destroyed, the register of deeds shall report sllch fact immediate-ly to the Chief of the General Land Registration OffiC'e and shall, if possible, forward to the sAme a Ust of the register books, decrees, and certificates of title destroyed. Section 76. - Chief of Land Registra.tion Of!U:e to provide copies. The chief of the General Land Registration Office shall send 01· cause to be sent to the register of deeds copies of the destroyed registration deC!I'ees and certificates of title. HISTORY: Sections 76, 77, and 89 of this Act have been declared "inoperative insofar as they provide for the reconstitution of ce1tificates of title" by RA 26 #215, eff Sept. 25, 1946. Section 77. - Notice to ownef'S of 1·egiste,,.ed .prope1·ty. Upon receipt of the copies mentioned in the next preceding section, the register of deeds shall cause to be published in the Official Gazette and in one of the papers most. widely read in the Philippine Islands, and in the Province, if any, for a period February 29, 1960 I.A WYERS JOURNAL ,t . ,,iz . nionf.lls, a notice to all ownera of propertv regi1tered under the , 'J:'onena QBtem, requiring them to present in the offiee of the. . feglater of deeds coplea of the original certlfleates of title 01· cVtmcaies of transfer Jn tlleir poaaeaion, in order that the annotation made upon the same may be spread upon the · copiea ncet~d from the General Land Registration Office. and upon such new eertlfleatea of trander as may be iaaued. HISTORY: Tb.is section &nd the preceding one were declared "'inope1•&tive hulofar aa they provide for the reconatitutlon of certifieatea of title" by RA 26 #26, eff Sept. 26, 1946. Section '18. - New 11otstioiur on. kok of t"CloonatituUcl docu.mmtf •. The register of deeds shall not make an,- new annotation upon the ba"ek of any reconstituted certificate of title or eertlficate of tranafer, until trui previoua annotation1 have been transcribed thereSeetion '19. - Notil:e to l:hGtt•l "*"rlga,e holUN. The register of deeds shall eaaae to be published., in the man· ner mentioned in 1eetion anenty.aeven, a notice to holders of chat. ter mortgage.I to present such eopiea of document.a 1'9latiye to the same 88 the, may haw, in the office of the resister of deed1. Section 80. - Rwntt"JI of such mortpgss. Upon the presentation of the copies mentioned. iri the next preceding section, the register of deed1 shall ente.r them anew jn the book of records of chattel mortgages, under Aet Numbered Fifteen hundred and 'eight, under the date appearing on said copies. Section 81. - 1"-Umhring of wl11equm.t mortgage entri61'. The register of deeds shall use a book of records of chattel mortgages separate from the one he shall open for the registration of new mortgages, filed after the fire or publie ealamitf, and shall register the new mortgages in ehronolocieal order, beginning wi~ numbei: one, unless it has been possible to save the book of records of chattel mortgages, in which ease the existing enumeration shall be followed in future entries. Seetion 82. - Smme prooeclure for oereaia other Mtrin. . The resister of deeds shall adopt the same rules and procedure for the reeonatltution of entries made under Act Numbered Twenty.eight hundred and thirty.seven and Aet Numbered Twelve hundred and twenty.eight, and amendments thereof. ActB nfernd. to: PA 288'1 is an Aet amending a prior Aet with respect to lands not registered under the Land Resjstratton Act. The reference to PA 1228 i111 apparently an error, 88 that is a apeeial Aet revaluinc the pl""Operty of one individual only. Section 88. - .E?&t.ti68 under Spanish. .'lfortga,ge Law With rep.rd to entries made under the Spanish Mortgage Law, the reglate1· Of deeds shall eanse to be published, in the manner men.tioned in aection 1eventy-aeven hereof, a notice to all peraons havinB' in their poaseaslon any instrument registered under said Ia.w, requiring them to present the same at the office of the regi1ter of deedi, for re.regi1tratlon. Section 84. - Nvm.•erin.s/. Entries made in accordance with the Spanish Mortgage Law shall be given the same numbers as appear at the foot of the instrument. SeeUon 86. - New book for tWonstihited' ,..gistraeitma The register of deeds aha1J. open a record book for reensti· tuted regiatrationa. Section 86. - Nota.tiona ecmcendng t"Cleonatitv.hd entries. It shall not be neeeaaar:v for the regllter of deeds, upon extending ·the reconstituted entries to make •DJ' entry in the entry book;. bat in the column for remarks or at the foot of each reeotn· atltuted entrv he shall put a note anting' forth ihat sueh entry has · been :reeonstitut.ed in accordance with this Aet. Section 8'1. - No fffflll. The resister of deeds shall not charge any fees whataoever for the rec:onstitution of entriea. Section 88. - Fo"" GM effebt °" ,..conmtuted entriu. Reconstituted entries shall have the same validity and leital effects as the original entries. Section 89. - 01riobwl doormwnts to be produced if 7'08sibl•. For the purpOffl of the reconstitution of the Clocuments of the -office of ,the register of deeds, the latter shall, whenever pos. aible, require the lntere1ted parties to present the original d~ euments, and shall make a OOPJ th"ereof, which ahall be eertified. eorrect and authentic and made •n accordance with this Act. HISTORY: Thia aeetlon and Section. '16 and '1'1 of PA 8110 were declared. "'Inoperative insofar ·aa they provide for the recon. :.t~=- of eertifieate_" of title" by RA 26 #26, eff Sept. Section 90. - Filing of Hrtifi«l eopi•• of origint&la G'lul force a8 .wi..e.. Copies ao made and· eertUied shall be filed in the proper envelopea or bundlea and .shall have the same validity and legal effects as their oricinala. Section 91. - RegulGtiona, it11~ and ncorde to 6s i11Ued. The Supreme Court, the Secretary of Juatlee, the Attorney. Gene1:al, and the Chief of the General Land Registration Offiee shall issue regulations, circulars, and inatruetions, and prescribe the books and banks neeeuary to carry into effect; the provisions of this Aet, and shall promulgate the rules and take the me8sures necessary to avoid future destruet;lon of the judicial records and the books or documents of the office of the register of deeds. REPUBLIC ACT KO. 441 (EffeetiTe June '1, 1~60) Section I. - Esetmrion of titf&8 to reeonatit.te court t••OOf'dl dsdrOf/8" ,,,, ...... Notwithst.andin1r the pnm.s1ona of Act Nilmbered Three Thousand one hundred and ten, the party or parties interested in any ease pending in the courts the records of which have been destroyed by reason of the last Pacific war may file a petition for the reconstitution of such records within one rea1• from the date of the approval of this Aet. ANNOTATIONS 1. Liberal eqnatrueticm; bpp!ierltion to p«rriaUr1 aomplstetl neonatitution proCHd-.ng•. flfl' The fact that a motion for l'eopening a reconstitution of J;ho records In a ease waa not made within the time originally pres· erlbed by law was immaterial In view of Reublie Ac:t No. 441, extending for one :vear the period to take atep1 for· reeOnatitution of records deltroJed b,- the war, as that A.ct. &einc remedial, Is to be liberally construed aa extending not merely the time rto start ori&inal reconstitution proceedings, but also applications for completion of partly reconstituted records. Rodrigo "· Cant0t', Ph.ii •• (#L-4398, 196") Seetion B. - .Pn>cedwe. The procedure, requirements and all other ineiden"tl of sueh 1-eeonatitution shall. be eoverned by the provisions of Aet Numbered Three tbouaand one hundred. and ten. 68 LAWYERS lOURNAL February 29, 1960 1959 l;IAR EXAMINATION QUESTIONS (Concluion) CRIMINAL LAW ·I. (a) Except as provided in treaties and laws of preferential application, enumerate five cases wherein the Revised Penal CoCle is applicable outside the territorial juriadietlon of the Phil· ippinea. (b) One night, tWo American soldiers of the U. S. Al'lllJ' forcibly take two Filipino hostessea from Angeles, Pampanga, and bring them inside Clark Air Baae. 0nC'8 inside the base they nre taken to a dance, but finding the hall too crowded they imrnediateiJr proceed to the aoldiers' quarters where the girl& are raped. (1) May the two soldiers be pl'OS81?Uted before a Philippine Court? Reasons. ' (2) For v.·hat offense or otfensea are thesr eriminally liable? aeasons. II. (a) Is mere membership in the Communist Party of the Philippina punillhable? Cite authoritative provisions.· (b) A was taken to a farm by outlaw members B and c.. B gave A a bolo and told the latter that the . chief outlaw wanted A to kill the farmer who was sleeping inaide the Jiut. A refused, but after B told A "you have to complJ' with that order of the chief outlaw, otherwi1e 7ou will have to come along with u1," A killed the' fanner. Ia A c1·iminally liable! Rearon out 7our answer. III. (a) Wb&t penaltioa are to be impoaed for complex crimes!; :ror criRlea committed which are different from those intended? (b) A was seated at the rear side of the orchestra in a theater. He left hi1 seat with his revolver in hand to look for another seat behind. On his W&J', bis revolver suddenly was diaeharged and the bullet hit B, causing his death, and C, caU• Ing inju1·les that 1-equlred. more than 80 days to heal . . If you were tbe prosecutor, for what offenses or offenses would 70U charge A, a.,.aons. Jf convicted, what would be the proper penalty! IV. (a) Diatinplsh both by their nattire and their effects between jultifJing and exempting circumatancea. (b) M:, a public achool teacher, scolded. R, one of her pupils. The next day, while M was conducting her cla18, R's father boxed M on different parts of her body. The injuries of M healed more than ten (10) days but le11 than thbty days. For what offense or offenses may R's father be charged! Give reasons for your answer. V. (a) Generally the Reviaed Penal Code imposes a lower penalty for crimes committed through criminal negligence. Cite one speelfleo offense where the penalty is the same regardless o1 whether the offense is committed with criminal intent or throu.rh criminal neglbrence. (b) X, a patrolman, was accu1ed of grave threats be. fore the JP court. He was arrested and detained In the municipal jail. Based on the certification of the Chief of Police that X performed contln.ucd. aervi.ce without "'baenee, X was able to draw his shlary during the period of his confinement. The mayor approved the payroll and the treasul'er paid the salary. What offense or offenses have been committed? Reaaons. Who are the parties liable theref.ore? Reasons. VI. (a) What are included in the civil liability incurred by a person committing an offense, and how- are they made or satisfied? (b) Give the two exceptions to the rule that penal laws shall have a retroactive effect in so far as the)' favor the persons cuilty of a felony. (c) For what offellses may a member. of Congress be arrested during the regular 01• special session of Congress? VII. (a) A and B, armed with carbines, decided to rob the house of X. While. attempting to gain ~ntranee thereto, X shouted for help which caused A 81\d B to fire &t X, who died. There is no nidenee to show who among A and B fired the fatal shot. May A and B be proaecuted ~ Reason out 10.ur answer. (b) A police raiding team apprehended a bachelor and a woman in tho act of eohabitation at a motel room. It was admitted by the couple that the woman received five bottJea of perfumes In consideration of the intercourse. · What was the offense committed, It there was anyl Give l'easons for your anner. · VIII. (a) In a poker pme A, employin1 fraud, won P600.00 from B. When the criminal complaint for estafa was pendinl' preliminary investigation before the prcvncial fiscal, A returned the PS00.00 to B's wife,· with lmowledge of B. After reeeipt of the P600, B insisted in the proaeeution of A. U you were the prosecutor, what will you do! Give your reasons. . (b) P knocked at the door of the room of: his wife, M. . When there was no response P opened the door. P aaw his ilJe. &'itimate grandfather, G, jumped out of the window. P asked M why X was inside her room, but M refused to answer. P pursued X and killed him. · What was the offense committed, if there was anyT Reaaon out rour answer. · IX. (a) Give the caaea where the Indeterminate Sentence Law does not apply. (b) D brought his maid E to his room. After raising hi1 cane D compelled E to take off her clothes and dance before him. What offense has been committed! Give youi reaaons. (c) F, cashier of the Manila Raiiroad Company, misap.. propriated P50,000.00 in conspiracy with L, a businelinnan. For what l>ffense or offenses are F and r. liable? Reason out ,Our answer. X. (a) State the provision in the Revised Penal Code which succeeded the fornier offense of false prosecution. (b) In consideration of Pl&,000 which R gave to S, the latter agreed to execute the nes.t ·day a d~d of co'nvepnce over l,000 sq. m. lot in favor of R. On the followin1r day, S did not iCIOD'lply with the agreement; inatead he ended R. When pressed by R for compliance, S refused. Later on, S sold the same lot to another buyer. What was the offense committed, if there was any? Reason out your answer. POLITICAL LAW I. (a) State the pul'P08e and scope of the due procesa Of the Constitution. (b) JC Is accused of' theft, and after trial the court .ten· tenced. him to ·the proper penalty for u.id crime. Ravinc been previou.sl1 convicted twice hy final judcment of the crime of theft. a fact suffielently allepd. In the Information, he t1 alao sentenced to an additional penalty of three yean of prison eorreccional purauant to habitual delinquency law. On appeal M eon. tends that the habitual delinquency law is unconstitutional, first, because It inflicts cruel and unusual pu.. nlahment. and second, beeoause it punishes an acCused a second time for an earlier crime of which he had been previously COD'Yieted. and 'PUDished. How should the appellate court resolve the qu ... tions raised by M'l Explain' your answer. II. (a) Gin two power& of COngreas 'which although not expreuly granted are implied from the u.presa grants February 19,- 1980 LA WYERS JOURNAL of power, and three non-lecWative powers expressly granted Congrela by the conatitution. (b) P, a member of the Bouie of Representatives and of the Commiuions of Appointments, as complainant filed formal administrative eharges against the jUstice of the peaee of a muunicipality in hb district. At the inverstigation of the charges before the Judge of the Court of F11·1t Instance of the province, may P, Oftlr ahe objeetdon of the :respondent who invokea Section 17 of Article VI of the Constitution which provides: "No member of the Commluion on Appoint~ts 1hall appear as counsel before any court tnferiOr to a collegiate court of appellate jurtsdiC'tlon", be perniltted to substantiate his charges? Reaaon out 10ur answer. III. (a) Distincu.ish eminent domain fl'ODl police power. (b) B is the owner of a big lot in the City of Manila. 1v. (a) With her permis1ion, a private alley was constructed from the public atl'eet bordering her lot into the in· terior of her property and the adjoining lot. This alley serves as the only m~ns of exit to satd ·public street for the interior residents. B fsubeequent17 applied for a permit to build a house of strong materials on the portion of her lot occupied by the private· alley. The City Engineer dented her applt,eation be. cause the PrGJlOsed building would cloee the allfiy, in violation of a city ordinance which provides that before a buUdlng can be constructed in the interior of a elty lot a private alley must first be provided and that such alley can not be closed aa long as there are interior :reaidenta uainc the alley as a means of entrance and egress to and from a public street. B filed a petition for mandamus in the Court of Fil'lt Instance of Mam1a to eompel the City Engl. neer to iaaue a building permit. contending that the denial of her application la tantamount to taking her property without compensation and that if the City of Manila needed her property for a street, it must flmt. expropriate it. Row should the court decide the ~se! Explalii your answer. Di1cu111 briefly the doctrine of immunity of Govern· ment from suit. (~) Commonwealth Act. No. 308 penalizes an employer who being able to make p&.yment, refuses to pay the 11alary of his employee. Prosecuted for a violation of aaid Act, R, as the owner of a bu1ineaa establishment. admits that he has not paid his emplo1ees. Re con. tend11, howeVer, that Commonwealth Act. No. 303 la violative of the provision of the Constitution that "No person ahall be imprisoned for debt". V. (a) Decide the case, giving reaeons. State one recognized exereption to the rule which prohibits the passage of irrepealable laws, and the reason or reasona for the exception. (b} F, a youq, ignorant orphan .rirl residing In one of the municipalities of distant province, came to Manila and started working as a domestic servant tn the house of J who advanced the amount for fare. F wants to leave J's employ, but J, without employing physical forcoe, would not allow her to leave until the amount advanced to her is paid in fUll. May a peti· tion for a writ of habeas corpus on her behalf be gran. ted In this ease. Reason out 10ur answer. VI. (a) On what eround or crounds may a provincial board disapprove an ordinance or :ruolution paaaed by a municipal council? (b) Under a power expressly granted by law to municipal councils, the municlpal council of A p&ued an ordlnanee p:rohibitinc the installation of machineries of more than 20 horse power within cert.a.in thickly po. pulated sections of the town. A copy of the ordinance was immediately furnished the provincial board of the province but that body never approved or disap· proved the ordinance. S applied. for 8 permit to install an engine of more than 20 horse power In ~ section of the town where installation of rich engine la prohibited by the ordinance. The municipal mayor disapproved the application and S filed a petition for mandamus in the Court of First Instance ·of the province' to compel the mayor to isaae the pennit, contendinl' that the ordinance is inoperative because it wa1 never ap· proved by the provincial board of the province. How should the court decide the ease! Reason out :rour answer. VII. (a) When does a tax ordinance passed by a city, municipal or municipal district council take effect! Who may napend it .and of what ground or grounds! (b) ·Under 1he power granted It by ~ city charter "to tax, fil the Iicenae fees and :regulate the businees of theaters, clnematograph1," the MuniC'ipal Board of Manila passed an ordinance impoain1 a graduated lieense tax on theatres and clnematographa in the City of Manila. On the other hand, Section 160 of the National Internal Revenue Code f"u:ea a graduated amusement tax on theaters and cinematog:rapha and other places of amusement. T operates afferal theaters and elnematographa in Manila, and. 8fter paying the amusement tax under the National Internal Reve· nue Code, he also paid, but under protest, b license tax required in the aforesaid city ordinance. In the suit which T filed to recover the lieense tax from the City of Manila, he contends that the ordinance i11 void because payment of the lieenae tax therein imposed constitute double taxation. la T's contention tenable? Reason out your answer. VIII. (a) Discuss briefly the doctrliies Of exhaustion of ad· ministrative :remedies and !!onclusive finality of administrative decisions. (b) M and R filed with the Director -of Lands aeparate Iea1e application under the Public Land Act cowering the same portion of the public domain. After an investigation, with notice to the conflietin8' ap. pliC'8.ntl, the Director of Lands :rejected M's application and approved tha.t of R. II immediately filed a petition in the proper court alleging total lack of evidence to support the decision and grave abuse of authority and discretion on ·the part of the Director of Lands, and pr9ing for judgment voiding said. decision& and ordering the Director of Lands to approve his "')(" application. Has M a cause of action against the Director of Lands, give reason for your answer. IX. (a) May the President of the Philippines by virtue of his control of the executive department of the gov· ernment and his general supervisory authority over local government., himself or through an official of the National Government designated by him, in· vestigate charges againat a municipal mayor, a municipal vice.mayor, or a mem.bu of the municipal council? Reason out :vour answer. (b) C, an alien, adopts the mitior S, an alien born in the Philippines. Alter the adoption G becomes a Filipino citizen by naturalization. Has S, who 11 atilt a minor, also become a Filipino citizen in view of Section 16 of the Revised NaLA WYERS JOURNAL turallzation Law whieh provides that 11niinor ehil· dren of persona naturalized under this law who have been born in the Philippines shall be considered citizens thereof", and Article 341 of the New Civil Code which states ''that the adoptiOn ahall give to the adopted person the same liCht.a and duties as If he were a legitimate child of the adopter''! Reason out your answer. X. (a) In the general elections of 1966, A and B we1-c rival candidates for mayor of the same munleipalitJ', Fifty-six (66) ballots contained the name of B but written on spaces for offices other than the office of the m&70r. In the election contest between the tWo tw.ndidatea which involved the 66 ballot.a, should theee be· counted in favor of B! Explain your answer. (Ir) R and G were candidates for the office of Provin· elal Governor of a certain province in 1966. G was proclai~ elected on December 8, 1966. Within the period fixed by Section 174 of the Revised Election Code (within two weeb after proclamation), R filed his petition contesting G's election. Within the time fixed. by Section 16 of the same Code which provides: "Sec. 1'16. Procedure x x x (b) The proteatee shall answer the protest with. in five daJS after being aummoned. x x x (e) Should the pl'Oteatee desire to impugn the votes received by the protestant in other precincts, he shall file a counter-protest within the same period . fixed for the anawer. x x x G filed his asnwer and counter-protest on December 16, 1965. On June 1, 1966, G petitioned the trial court for permiuion to amend his counter· proteat. by including therein a new preetnct. R objected to the petition to amend. ' Should the court grant G's petition to amend his answer· and counter.protest. Reason out your answer. REMEDIAL LAW I; (a) Distinguish cause of action from right of &«ion. W.hat. law caverns each, (b) What determines the singleneu of a cauae of action and what is the effect of splitting same? Supposing an indebtednns of PS0,000.00 is pay. able in five yearly amortizations of PG,000.0I). each starting on January 1, 1969, and one every January lat of each year hereafter, there been no acceleration clause. The fint installment not havinc been paid, a demi.nd was made for the sum of P6,000.00, but debtor refused to pay, allecing thil.t the obligation was without consideration. If you are to file a complaint for the creditor, upon what ea.use of action would you baae it, Give your reasons. II. (a) Differentiate: (1) permi~lve joind'er of parties; (2) cla11 Suit; (8) Derivative suit. (b) A owns a reaidential Jat; with a garace thereon in Bapio Ci,ty. ];le agreed to lease the garage to B f0~ . 2 :ifto!lth&. u_nder a mitten . l."Ontraet to be, later executed. B, who had taken posses_sion of the garage, required A .to si8n the formal Contract. but A refused, addine that there was no need fpr it. Jf B fi.1~ an action to c;ompel A to ex~ute the a8'reed OOti.traet, "is the. i.etion "in rem". or "in per· sOnam"? · ·· · ' - ·.fJJI. (~) .In .~h-at . .a~tion. ~r .~ons .. is ~- ~uciCment ~n the plead· : ings, .. or .a judgm~t. based on · ~tipulation of facts or eoiiftisaion of ·judgment noi &ppllcable or obtain· ~;_ able! ( b) A sued. B in . the 9oUrt of First Instance to recover Pl0,000.00. B, the defendant, answered. the complaint within the period provided. for by law. Later A, the plaintiff, filed a notice to dlsmiu the. action. The eaH waa nevertheless set for trial with notice to the partlee. On the day of the trial plaintiff was absent and the defendant moved for the dimiasal of the ease, and the court diB111.i1sed the ease. Om! year later, . A filed "the . same action against B. The defendant B filed a motion to dismies, on the ground that the dismissal of the first action wu bar. Decide the ease, 1ivlng your re•· sons. _ . .. . . JV. (a) May a court of "first instance iaeue AQ injUnetion. in connection with a picket estabii~ed b, a striking Union of l&borera by m8s0n .. 01 a Pending ctiie of un. fair labor practiCea in tlie cOurt oi bidustrtal Relations! Reason out your Bnswer. . (b) A filed & eoinplaint iii the Court of li'h•st Insianee ag. ainst M 4 Co., ian in8urance eonipan)", to collect the Value Of· a fh,, iD.aur8.ilee "policy· coveriile A's property which was burnt. A obtained judgment in his favor and notice thereof was served on· the insuranceeOmpaDJ' on December 20, 1958. The deeisioil became final on January 19, 1958. Four months and fifteen days after the decision has became final, -M 6 Co. learned tha~ the fire was intentional and succeeded in gathering evidence to this effect. Is there any remedy for M Ir:· Co. by which it may relieve itself from compliance with the jwtg.. mentT If in the affirmative, upon what erounds and in what manner may the relief be obtained"? If in the negative, state your reasons. V. (a) In what respect has the new Civli Code affected the proviaions of the Rules of Court in the matter of': (1) Guardianship; (2). Adoption; (8) Presumption of death for purposes of succession! (b) X ·obtained a judgment for money against Y in the Municipal Court. Pending trial of Y's appeal in the Court of First Instance, Y dlea. (1) Can X file his judgment In the administration of Y"a: estate! (2) SuppoiEng Y died after judgment agalllft him bJ the Court of First Instance, what would X'a remedy be? (Sf Supposing further that execution of the judgment of the CFI ·ha• been levied on Y's property at the time of his death, what remedy does X have? Reason out your. answera. VJ. (a) Distinguish from eaeh other: suspension of payment; voluntary insolvency; involuntary insolvency. (b) R, administratar of the estate of the deceased 6, after submitting his lnvento?'f, files a motion in the adminiatration proceedings praying for an order directing X to deliver to R the house and lot included in R's inventory. The Court, without hearing, cran"h the motion and issues the corresponding order. X, n~thwlthstanding the ordei·, refuses to . d.eli"ver the property claiming that lt was. donated to. him inter vivos bJ the deceased S. R contends that the donation was null and void. R ~ska -the cOurt to .. declare . the donation invalid, to declare X In ~ntempt of Court, and to compel X to deliver the ptoperty.· · . If .J'O~ were ~ou.nael for X, on what grOJ\l¥l weuld you oppose the second motion. and. aUJ.il., the first ord&f.? . Reasons'" . · · . _ · ' r 1 .VII .. (a) :Name th"' ~unds for .'1 moµ~n.:.tQ..:.Q~h that are ~ot QP&ntPi;. 1111Pn the .faqe of..a ~mgi.&iJ,11; or information. ~Ii; i :•.' ~· ,,.: •. 1:: (b) A was prosecuted for alleged attempted homicide In F~bru&r,. 29, 1960 LAWYERS JOURNAL 61 that he willfully, unlawfully, feloniously, with intent to kill, hurled from a house-window, a big stone at B while the latter was passing along A'a house, without hittiD&" her. At trial the proaecution establishetl that B waa injured probably by a splinter when the atone hit the pavement which physical injury required eleven da:vs to heal with medical attendance, and the Court admitted the evidence ove1· the vigorous objec. tion of the defense on ·the ground that there was no allegation of ph:vslcal injury in the Information. Ruling that the intent to kill had not been proven, the Court, however, eonviated tlie defendant of less serious physical injuries. Was the judgment of conviction well taken? Reuons. VIII. (a) When ·may an Information be amended without leave of court? (b) A, defendant in a criminal case took the witness stand on bis own behair. In hla croBSoezamination, can he be compelled to: (1) Write or gi:Ye specimens of his handwriting on a piece of paper Bo aa to detet'Dline whether he 11¢ written another allegedly falaified document? (2) Place his foot upon a footprint on the ground, to see If said footprint tallied with his own? (8) Produce certain documents proven to be in his poaseasionT Give reason for your answer. -IX. (a) State the Hea,rsay Evidence Rule and discu11 the differenee In ita effects: when offered testimonially and 'when tende1-ed d.rcumstancially. Illustrate by examples. (b) Y had purchased a pareel of land from X and paid Pl,000.00 therefor, leaving a balance of '200.00. Z did not personally intervene in his transaction, but BUbaequentlJ meeting X, had verbally guaranteed pay .. ment of of said balance. In an action for the recover)' of the baULnce foled- by X againat Y and Z, the evidence bad disclosed that Y had just been acting as an aeent or representative of Z in said purehase. As a matter of fact Z was the real purchaser of the land. Will Z's defense, under the Statue of Fiauds, that his "promiae to aDl"\11.'f!r for that debt of another" not being in writing and consequently invalid, proper? Reasons. X. (a) State the rule or principle of evidence called "Res Inter allos Acta" both in criminal aa well as in eivll cases. Reasons for the rule. (b) In an extra-judicial confes1lon had before the Constabulary and NBI officers, A, charged with murder. voluntarily admitted the charge, but incriminated B and C as his eo-eonspriators. Apprehended, B and C vehemently denied the charge or any participation therein. Disregarding however, B Ir: C's counsel's objeetion td the admiuiblllty of A'a confe11ion as against B Ir: C, the proaecution filed the corresponding information against the trio. At the trial before the Court of First !stance, counsel for B &: C again vigoroualy objected to A's teatimony. Is A's testimony on te witneas stand incriminating B Ir: C achniasible against them? Reasons. Manila August 80, 1969 LEGAL ETHICS AND PRACTICAL EXERCISES I. (a) You may answer the following two queations separately or together. (l) Ia the "ethics" of the Ie1al profession in this jurisdiction provided for In a speel.flc atatute or rule of court? If so, indicate pnerally the eorresponding statute or rule. (2) If legal ethics in this jurisdiction is not covered by positive statute or rule of court, Indicate generally the source or sourcea of authority for finding that a la'WJ'82' has acted unethiC'ally. (b) Senator X la engaged in the practice of law. One day, 'three prospective clients, A, B, and C, asked him to represent them In three separate cases, aa follows: A is a municipal mayor accused of murder; B ls the owner of a piece of land and is defendant in upropriation proceedings filed b)r the City of Manila; and C ia: an Infantry officer who is accused in courtmar"tials proceedings. Can Senator X properlJ" accept all the cases! Briefly explain your anawer. II. (a) Can an attorney of record, with a written contract of partnership, withdraw from a "ease against .the wishes of hia client! Explain your answer briefly. (b) X has been convicted of murder by a Court of First Instance and be bas appealed to the Supreme Court. Atty. R was appointed touneel de officio. After studying the records, Atty. R came to the conclusion that X la really guilty. Which of the follo\\ing alternative actions may be properly take? ( 1 ) File a brief and contend neverthelels that X is not guilty. (2) File a brief, or motion, asking that the decision be affirmed (3) File a motion praying that the Court relieve him as eounsel de officio on the ground that he can not adequately represent X becauH he believes him guilty. Ill. (a) Rep. Act No. 146 penalizes the receipt of feea by a lawyer in ezcess of P20.00 In relation to claims for benefits under statutes of the United States beinc administered by the U.S. Veterans Administration. Atty. M was found quilty and convicted in a criminal caae for violation of said Rep. Act No. 146 for having 80· lictted, ciharged, and received, u fees, amounts in sceas of no.oo. May Atty. M be disbarred becauae of his conTiction? Give your reasons. (b) As lawyer for client X, Atty. A secured a money Judcment against Y before a court of. first instance. On appeal by Y, X hired another laWY,81' to represent him in the appeal and judgment was affirmed. Two years after the decision had bet!Ome final, X tried to execute his judgment against property which he thought beloneed to Y but Vthieh a third party, Z, claimed to be his. As a matter of fact. Z filed a complaint apinst X and the Sheriff to vindicate his title to the proper. ty. Z wa1 represented by At:ty. A. Did Atty. A commit any breach of legal ethics? Reason out your answer. IV, (a) Atty. A consented' to the publiC'l.tion, but for only one time, of the following advertisement in a local newapaper as a gift from a client: "Free legal consultation ·for the poor. Marriage license promptly seC'llred and arranpd according to wishes of parties. "Atty. A - Tel. 392; 41 Eacolta". (1) Did Atty. A violate any statute or rule of court! (2) State whether the Supreme Court has decided •DJ" case with similar fact.a; and if so, give the ruling enunC'iated by the Court. (b) B took an affidavit to his lawyV, A, who was also a notary publici for ratification. B swore to the affidavit and sil'll it before A, who ratified. the same and made ithe corresponding . ent1·y in hta notarial register wltbout reading It. B took all the copiea of the affidavit •• I,A WYERS JOURNAL . FebrU8l'J' 29, 1960 with him. It turned out later that .the affidavit contained allegationa that B, a married man, had agreed to live separatiel;v from hi1 wife, eonflrmhqr that each of them could ehooae another lifetime partner without interference from the ·other. Can the act of Att,'. A, in ratifyins the affidavit subject him to dllbarment, ! BrieflJ" l'UIOD out your answer. V. (a) F is the leading law;ver in hi1 province. C, a resident of the same province, havinc a doubtful claim against P, another resident, consult with F, showing him papera and giving him facts relative to the claim. F thereafter tells C he believes that C does not have a case against P and politel;v refuses to handle the ease Subsequ.entq, C hirea the services of another laW)'er and files auit apinat P. P now approaches and aak F to represent him. (1) What eonaideratioil. may be Invoked tn support of F's aceeptanee of the reques~ that he represent P in the ease! (2) What consideration in contra may be in'lOked! (3) State whether the Supreme Court has decided any ·case with similar facts; and if so, give the ruling enuneiated. by the Court. (b) Suppoae that next month after the bar examinations are over but befo1'8 the reaults are published, you are engaged to repreaent the accused tn a criminal ease of damage to property throuch reeklesa imprudenee pending before the Municipal Court of Manila. Can you legally represent the accu1ed T Briefly explain ;rour answer. VI. (a) After a pre-trial was had in a civil cue, Judge B caaually state. the followinc to the attorney for· the plaintiff: "Atty. X, I do not believe in the veracity of or relevancy of your evidence. I advise you to compromise your eaae." COURT OF APPEALS ••• (ConUnUB<i frum pog• 60) leet to perform any duty specifieall:v enjoined. b;v law. .The petitioner alleges that it orally acquiesced to tbe .cross examination of its witne1s before a eomnUsaioner subject "to the proviso that in the event man,- legal questions or iBSUes arise dudng the eroq.uamination before th& commissioner, the same shall" be retunred to the court aa the commissioner is powerleaa to rule on them." However, the order of August 10, 1959 eompletel;v belies this allegation - which is probabl;v the reaaon why it is not among the annexes 1ubmitted with the petition, despite the fact that it is precisely the same order being questioned. Upon the other hand, it ('8.nnot be successfully denied that the principal isaue of Civil Case No. 36113 requires a tedioua examinatiori of a lengtl\;v and complicated account. Aside from the Pl60,000.00 for moral and exempla1-y damages and attorney's fees, the plaintiff therein, herein petitioner, asked for the p&Jlllent of P36,000.00 repruen:till&' its capital contribution to the filming of "Buhay at Pac--ibiel ni Dr.· Jose Rizal"; 1'31,000.00 represmting dam· ages due to padded production eoata; Pl0,000.00 repreaenting earned and eoncealed profits; and P60,000.00 for unrealized but expected profits. While the defendant therein, herein respondmt corporation, alleged that the total cost of the production of the film was not only P'l0,000.00 as previoual1 estimated, but PlOl,424.86 ; that ever;v item of expense is support.ed by invoices and vouchers; that the more than six months' sbowinc of the film in different theaters would require the report of the ticket aellei·1; and that the statement Of account .eovering all income and ezpen1es would demand the intervention and testimollJ' of public accountants. It is therefore indisputable that the respondent judp on his (1) Bu the judp eomnrltted - breach of judicial ethics! Ezplain you answer. (2) What remedy, if &DJ' does the plaintiff have? Explain. (a) A bua, dliven by X collided with and damaged the car of Y. In the criminal ease filed for ph)'sieal injuries and damage to the property through reckleaa Imprudence, Judge G acquitted the accused X. Subsequently, Y fi~ a civil action for damages against X. The civil case was auigned to the sala of Judp G. (1) Can Judge G be diaqualified from hearing the ei:ril ease! Briefly give your realOlls. (£) If X 1hould seek to disqualify Judp G, how should he go about it? VII. (a) SW, a woman married to FH, sold two parcels of land located in Quezon City for '20,000.00 to Mr. &: Mrs. AB. Prepare the notarial acknowledgment for a simple unilateral deed of absolute sale to eover the •transaction, supplJ'lng all neeesllll'1 data. "(b) Prepare a simple negotiable promissoey note with an acceleration clause. VIII. (a) Using your own facts, prepare a paragraph for inclusion in the articles of incorporation of a compaey . providing for It.a authorized capitalization. (b) Supplying your own facts, prepare a simple bill of exchange. IX. (a~ T is the owner of an apartment house. He leased apartment No. 2 to H for a year, tel'minatinc on JulJ 81, 1969. Although no atension to the lease waa granted, B refuaed to vacate. On Aupllt 16th, aa Attorney for T, you filed a complaint for ejeetment apinlt B. Reproduce your entire complaint. X. (a) Omittina' caption and title, and supplying all necessary facts, prepare the body of an tnfo1"111ation' 1eharging the accused with bi&'amy. Manila. Aukust 30, 1959 own motion arid even without the consent of the partlu, could have legall;v refened. the aforementioned civil case to the eomJnia.. 1loner direCtinc the latter to hear and report upon the entire Issue, pursuant to section 2 of the rule aforeeited. · WHEREFORE, the inltant petition is· denied and diemilsed, with costs against the petitioner. IT IS SO ORDERED. Di.on and Pefits, JJ., concurred. ---oOo---NO MONEY! A famous lawyer was called in to see a man in the county jail accused of murder. When he returned to his office, his 1eeretacy said, "Well, did you take the · ea1e, Mr. Blank!" "No, I didn't take it." "Why, didn't you think the man was justified in his acts!" 11MJ dear young lady,' 1aid the lawyer, "he certainly was not finaneially juatified in committing murder." - Na.pies (N.Y.) R ... rd. NONE WHATSOEVER Judge: This is a malpractice ease, and the defendant ia a doctor. Does that create any bias or prejUdice in you in any respeet; because the defendant is of that profession? Juro1·: No, Your Honor. Judge: What is your occupation? Juror: Undertaker. - MinttUOilll Bulletin. F"ebruat;v 29, 1960 LAWYERS IO'i!RNAL. •• PROFILES: MEMBERS OF THE BENCH AND BAR ARSENIO SANTOS Jtul11e, Court of. Firtt Instanee of Pampan,11 T~ temper justice with mercy is an act of humanity. It is no le'Ss 8.n· act of nobility. Mercy ia rightly described as the crown ot · jU:Stice. There is always the recurring possibility that what Justinian or an assistant of his defined as "the earnest and constant will to render to every man his due" may have e1Ted, that the ·proverbial scale Or balance may have been tipped in favor of seVerity or injUstice.'· It Is altogether unfortunate that in the administration of justice In the Philippines, many a judge often forgets to temper justice or what he thinks is just. The reason is that In ~nstru· i~c or_ interpretin& the law, he adheres more to the letter than t.o the spirit that prompted the enactment of such law. Years aco, an. Ameridan W«ld War '911teran, wishing to aUay the pann of hunger, yielded to the temptation of helping him.self to a ·few apples and a pouitd of grapes. Later he told the fruit vendor that he had no money and cot1sequently could not pay for the damage. He was placed under arrest. Brought to court, he confessed to the judge that since he left the army he had been out of job, th•t he had tried his beat to look for one but without aueee.18. that he had· a wife and son to share his lot. Satisfied that the accused bad told nothing but the truth, the judge set him free. He went further: he asked the people In court io chip in Whatever they could for the old veteran. The audience contaibuted twenty-five dollars with which the &C'c.Used reiuriled home plus a job. Ponibly, what the good judp had done was not stric:Uj in accordance with the · 1aw, but he earned high commendations both from the press and the publie. Fee'lill&' hungry after roinr his dailY rounda in the old W:alled City for possible ~ustomers, a young bootblack seated himself in a Chinese iutaurant and ordered some 'food. After finishing his meal, he went to the manarer and told him that he had no money with which to pay. He was arrested, charged with eata/a, and was sentenced by the municipal judge to more than one month's impriaonment. The judge excused himself by sa~lng, possibly to ealve ··hia.·eonscience, that the law gave ·him no discretion. Finding himfflf similarly situated aa hia American counter. part, a judge of the Court of First Instance of Pampanga, with out having heard about the American veteran's case! recently ac· quitted an old man, an ex.guerrilla, cbarpd with having helped himself also to some food for himself and his wile and children. Re pleaded guilty, but begged that he be cinn another chance as h~ had failed in his effort to look for a _job. A number of witnesses testified to the truth of the perrilli.'a statement. The judge generoualy responded. to the plea for mercy, had the hat pasa· ed around in court for those who were willing to help. Not oi>.ly did the p1isoner return home with money, but what wu better, he waa assured of a job in the comfnunity. " The judge who did honor to hia position and still does is a son of Bulacan, but a district judge of Pampanga. Judge Ai-se· nio Santos, a native of Malabon, is not only a man of understanding, but a man of broad sympathies, who, despite his inherrted wealth, has not loat the common tout'b. Re has had a nried careel" that gave him perspective and experience. Re finished hi11 collegiate course at the Ateri"eo de Manila, majoring in philosophy. Enjoying a tremendous popularity in his home town largely due to his kindness to the people and his willincneas and disposition to help wherever he can, he was -elected ma1or of Malabon in 1~16 when he was barely 19 7ears of age. Knowinc that he was a minor, his opponent filed f'UO ttnr· ranto proceedings. Unseated by order of the court, Santos wal' named acting mayor or· rather municipal president by the Gover· nor-General. With reluctance he accepted the appointment. His position did not prevent him from taking up law, the intricacies and complexities of which fascinated him after he lost in court. In 1921 he completed his law course at the famed Escuela de Derecho, now defunct, and passed the bar in the same year. Promptly, he was designated secretary of Bulacan'a provincial board. The late Governor-General Wood ·took notice of him and appointed him acting provincial governor; but determined not to be in politica, he resigned in two days. Efforts were exerted by General Wood to keep him in office, but he firmly declined the offer. He wanted to remain just a plain citizen, a lawyer, not a politician, by profession. He had enough law practice and that apparently satisfied him. His books and his studies had more attraction for him than positions in the gov~rnment., The late President Quft<ln, whO knew how to select his men, offered to appoint him provincial fiscal, then judge; but cratefuUy he declined both offers. In 1946 or after liberation, President Os· mefta prevailed upon him to accept a position in the judieiary. Circumstances, however, did not permit him to remain long. It was on)y in 1964 that he finally coneented to give up his law practice and accepted his appointment by the Jate President Mag. aaysay as judce of the Court of First Instance. One of the important cases recently decided by him is that of the incumbent mayor of Angeles, Pampanga, in which the mayor, who appeared in the certifidte of canvass as having lost by one vote, asked for the recountlnc of the votes lb a certain precinct irl Angeles, basing his petition on the dis~pancy between the number of votes written in words and the number of votes written iri figures. The opposing candidate contended that auch discrepancy was not a ground for the recounting of votes because in caae of conflict between the figures and the words, the latter must prevail. Judge Santos decided the case in the sense that there was discrepancy among the election returns themselves iD so far· as the fi: gures and words of 'the number of votea was ('Oncerned, and or: dered the recounting of the votes. In the eerti0"1ri filed by the opposing candidate, the Supreme Court sustained the opinion of Judge Santos. Lawyers appearing before Judge Santos are unanimous ln their opinion . that because of bis splendid re<:o?d, his background and exPe1ience, he should be elevated to the Co.urt of Appeals. LA WYERS JOURNAL Februa?J 29, 1960 Lawyers Directory ~GUILA, PADLO Otril'f!: R-218-B Rcgin11 Bldg. Escolta, Manila Tel. a-81-98 Prov. Branch Oftiee: Rizal Avenue Batanll'llS, Doto.ngns ARTURO A. ALAt•mz & ASSOCIA'l'ES Attornel·s & Counsellors at Lnw Suite 406·408 Regina Dldll'. Escolt.n, )(aniln Tels.: 3-33-38 3-48-67 AN'l;ONIU, llOMAN U. R-420 llomnn Sn11t<I$ llld11:., r111z11 Gniti. Mnnlln ore. 'l'el1. s-e1-so 3-6~-40 Res. Tel Z-46-36 ARTIAGA, SANTIAGO JR. Suite 309 Samanillo Bid&". Escolta, Manila ASA, L~ON L. J.'r1111clscu l.i1w Offi«e Jt-2.01 Smn1111illo Dhllf, Eseoll11, Mnuiln Tel.3·33·64 ll~ltNAJ,UO, JUCARDO lltAG. Aut. Attu1·ney: LEONAllDO S. llALAN Suite 303 Cu Unjieni: Did&:'. 208 Dnsmnriiillll, Manilu Realdenee< r.72-674 Jle1·lmsn eor. l'1·11neu Tondu, Mnniln Jo'EltNANU(!:Z, ES1.'ANISl.AO lt-420 ltomn11 Snntw llldi:. l'lar.n Goiti, llh111iJ" Tebl. 3-91-80 3-84-40 FRANCISCO, Al.DEll'l'O J. Il-201 Somllnlllo Jlltlll'.. MnnJlu Tel. 3-33-64 FRANCISCO, JtlCAltDO J. R-201 5'1.mnnl:lo Dldll' .• l\ln11llll Tel. 1-33-84 FRANCISCO, RODOLFO J. It-201 Si:r.mnnrno Dldg., M11nll" 1•.,1. 3-U-114 1'"1tANCISCO, VICEN1'E J. ll-201 Snnmnilh• llhbi: •• M11nll~ 1'el, 3-33-64 3-83-68 3ARClA. DIENVENIDO L. 210 Colvo Blda:. Escolta, Manila Tel, 3-68-3~ (llJErmtuo. ll~llNAllDINO D·Jll-C ltegllm llldK. Ortfoe 'l"el. 3-.411-411 lteio. 'l'el. GUZMAN, DOMINGO I'. DE Suite 312 l'CI Dillir. 416 D11am1u·lii1111 St. M'1miln 1'el. 3·45·61 GUZMAN, rnUDl~NCIO l>I~. ~ll RENl'l'O, JllS'l'INO ?.. GUZMAN, l'ltlJDENCJO DI~ •• TR. D-204 Leybn Dl<lll'. 381 D1111mnriii11a, Mnnll11 1'el. Nu. 3-21-711 ,IOltlMN 'l'.l!:ClllCO J,AW nt"l"ICES AsHor.intes: C"'1imll"fl S. l'a J,foerfo J. M11nd11<:~'1" lln11 Chmm Iii.Ii:. Suite 201-202, GU 'l'. rl11ph1 Cnr11ei- 0111::11i11, M1111ilu Tel. :Ml1·24; fi-ri2-3!i: 3-19·64 LAZANA, NICANOR R-422 S11manillo Bldg. Eseolta, Manila lllORALES, ERNES'fO 'l'. Suite 609 Romon Snntvs Dlda:. Plaz11 Golli, Manila Tel. 3-Rl-31 Rea. 1921 Dnkotn, Mal11t1, Manila OLIVEROS J,A W OFFICE Teotlmo T. OliveroB Sam11aloe, Manila Tel. 6-Ji9-lll In view ul the Pl'e><ent <iifiieulty of loe11d111r the offle. of praet1c1na: 11ttorneys, the Journal p1.1bli~he11 this di1·eetory to acquaint nul oniy their eiients b1.1t aiso the 1mblic of their nddresa. L11wyen may av11il them9eh·es of thi$ se:·vice upon 11uyment of Two Pesoa for each iuue of this J)Uillicotiun or 8ix l'edu~ for one 1ea•· 12 inuespa:rable In adva ice. llOXAS. llUllEN I,, 202 cOlv" ll~br. 'J'el. ~-/i&.oll SAN .JUAN, Al"IUCA. YNIGUl!:Z A Dl!:NEDJC'1'0 010 l'11dre 1'11111·11. Ermlt••, Mnuiln •rel~., r,.70.72 & r,.10.73 SAN'l'OS, JOSI!: 'J'. l>.I!: I.OS SAN'l'OS. CJJUACO 'l'. I)~ I.us SAN'l'OS, JOllGE 'I'. DE J.os 2nd l"lour EMA Uldll'. Nu. Ill Qulo110, Manlln 'l'el. 3.34.411 SAYSON, CIRIACO C. ·omee: R-306 Burke Bids: F.scolta, Manila Tel. a.:;s-10 Rl'>lldenee: 68 San Antonio San Frllnclsco del Monte Quezon City S\'CIP, SALAZAR A ASSOCIATES 0111 l•'lour, 'l'rnde A11d Commerce lll.lir 216 JUllll l,ur1a, Mnnil11 'l'ei.. 2·68-0ll,.2-6!1-07 & 2·6ll·Dll SYQIJIA & J•'ltANCISCO I.AW (Wl"ICll' I~NlllQUl~ I'. SY<l(llA CRESCENCIO M. J•'ltANCISCO Amlrea J •• Ih1lt11zur .Juse C. Leu1·et11 303·6 Aurea Bldg, 638 Rizol Ave., M11niln Tebl. 3.17.:;2 I: 3·116-51 TECHICO. JORDAN R-201·202 Ban Cbuan Didi!'. 'I. Pinpin, Manila J<::MElmNCIANA s. l'AClll':CO-'J'lt;!.Ao l!Hl-11 Su11 A11tuu, 1'1n11il11 '!'el. 3-11/i-29 LEON 0. TY, OLIVElt UANAYO Ol!:SMUNDO I: RlCAitDO Z. vm.ASCO - c/o Confederation of Cltizena J,abor Unlu11 (CCl,U) Rm. 303 Free PJesn 11:.111'., 708 Rizal Au., Manlln, Tel. 3-118-74, 2-29-37. Ur11neh Of· !ice: 6 RizDI Ave., San Pablu City (e/o 1''eder11tion o[ Cuconut Worken1 (SllH l'nblo City Chnr>l•r) - CCJ,111. Why Lawyers Should Subscribe To THE LA\YYERS JOURNAL Because Its pages are open to lawyers for the expo>ition of their views on the administration of justiee and other matters of public interest. It keep~ lawyers abreast with the development of law l!nd jurisprudence through the publication of legal articles by Filipino arid American lawyers, .some of them appearing in leading American law reviews. It helps the lawyers in the practice of their profession by offering them, for ready reference, the advanced opinions of the U.S. and Philippine Supreme Courts, Court of Appeals, Court of Industrial Relations, Court of Agrarian Relations and the Public Service Commission. It provides the laWYers, for ready reference, with the laws passed by the Congress of the Republic of .the Philippines and the opinions of the Secretary of Justice. It moreover keeps the lawyers informed of important past and current historic events. The EAST PUBLISHING is the EXCLUSIVE M A B U H A Y Press agent in Manila of all law books authored by Atty. Vicente J, Francisco. Place your ORDERS directly to the EAST PUBLISHING R.-608 Samanillo Building Escolta, Manila •Printers • Publishers • Bookbinders • Typesetters Printer of the La.1011e1·s JOurnal 2838·42 Aurora Blvd. corner Rizal Ave., Sta. Cruz, Manila Tel. 2-89-01