G.R. No. L-2068 October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga, Respondent.

E. M. Banzali for petitioner.

Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari for respondent

TUASON, J.:

The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion was denied and that denial is the subject matter of this proceeding.

According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first instance.

Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent justice of the peace had allowed the accused, over the complaint's objection, to recall the complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the preliminary investigation, there is nothing in it or any other law restricting the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring out the truth."chanrobles virtual law library

But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses to repeat in his presence what they had said at the preliminary examination before the issuance of the order of arrest." We called attention to the fact that "the constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examination be an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.

The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew

Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.

G.R. No. L-28100 November 29, 1971

GABRIEL BAGUIO, plaintiff-Appellant, vs. TEOFILA L. VDA. DE JALAGAT, for herself and in representation of her minor children, DOMINADOR, LEA and TEONIFE all surnamed JALAGAT; ANABELLA JALAGAT and EMMANUEL JALAGAT, defendants-appellees.

FERNANDO, J.:

The specific legal question raised in this appeal from an order of dismissal by the Court of First Instance of Misamis Oriental, presided by the Hon. Benjamin K. Gorospe, one which has not as yet been the subject of a definitive ruling is whether or not on a motion to dismiss on the ground of res judicata that the cause of action is barred by a prior judgment, a lower court may take judicial notice of such previous case decided by him resulting in the prior judgment relied upon. Judge Gorospe answered in the affirmative. So do we. An affirmance is thus called for.

The case started with the complaint for the quieting of title to real property filed by plaintiff, now appellant, Gabriel Baguio, on February, 14, 1966. There was on March 7, 1966 a motion to dismiss filed by defendants, now appellees, on the ground that the cause of action is barred by a prior judgment. This was the argument advanced: "The instant complaint or case, besides being clearly unfounded and malicious, is identical to or the same as that Civil Case No. 1574 filed by the same plaintiff and against Melecio alias Mening Jalagat, now deceased and whose legal heirs and successors in interest are the very defendants in the instant complaint or Civil Case No. 2639. Said Civil Case No. 1574 was filed on October 7, 1958 for 'Recovery of Possession and Ownership of Real Estate' and entitled Gabriel Baguio, plantiff, versus Melecio alias Mening Jalagat, defendant, involving practically the same property and practically the same parties as defendants are the widow and the children, respectively, thus the legal or forced heirs of the deceased Melecio Jalagat. That the said Case No. 1574, which is identical to or is the same case as the instant one, has already been duly and finally terminated as could be clear from [an] order of this Honorable Court [dated December 6, 1965]." 1 There was an opposition on the part of plaintiff made on March 26, 1966 on the ground that for prior judgment or res judicata to suffice as a basis for dismissal it must be apparent on the face of the complaint. It was then alleged that there was nothing in the complaint from which such a conclusion may be inferred. Then, on September 26, 1966, came the order complained of worded thus: "Acting on the motion to dismiss filed by counsel for the defendants under date of March 4, 1966, anchored on the ground that plaintiff's cause of action is barred by a prior judgement which this Court finds to be well-founded as it has already dismissed plaintiff's complaint in Civil Case No. 1574 against Melecio Jalagat alias Mening Jalagat, defendants predecessor in interest from whom they have derived their rights, in an order dated December 6, 1965, pursuant to Section 3 of Rule 17 of the new Rules of Court, which case involved the same parcel of land as the one in the instant case, as prayed for, Civil Case No. 2639 should be as it is hereby [dismissed]. The Court's previous dismissal of Civil Case No. 1574 has the effect of an adjudication upon the merits and consequently is a bar to and may be pleaded in abatement of any subsequent action against the same parties over the same issues and the same subject-matter by the same plaintiff. [So ordered]" 2 Hence, this appeal.

The order of dismissal, as noted at the outset, must be sustained. It is in accordance with law.

1. The sole error assigned is that a bar by prior judgement cannot be raised in a motion to dismiss when such ground does not appear on the face of the complaint. What immediately calls attention in the rather sketchy and in conclusive discussion in the six-page brief of applicant is that there was no denial as to the truth of the statement made by Judge Gorospe that there was a previous dismissal the same plaintiff's complaint against the predecessor-in-interest of defendants, who as expressly admitted by appellant was the deceased husband of one of them and father of the rest. There was no denial either of the property involved being the same and of the finality of the decsion in the previous case which would show that appellant's claim was devoid of any support in law. It would be therefore futile for the court to continue with the case as there had been such a prior judgment certainly binding on appellant. What then was there for the lower court to do? Was there any sense in its being engaged in what was essentially a fruitless, endeavor as the outcome was predictible?

Certainly, the law would lend itself to a well-deserved reproach if the Rules of Court would sanction such a proceeding distinguished by nothing but its futility. It ought to be clear even to appellant that under the circumstances, the lower court certainly could take judicial notice of the finality of a judgment in a case that was previously pending and thereafter decided by it. That was all that was done by the lower court in decreeing the dismissal. Certainly such an order is not contrary to law. A citation from the comments of former Chief Justice Moran is relevant. Thus: "Courts have also taken judicial notice of previous cases to determine whether or not the case pending is a moot one, or whether or not a previous ruling is applicable in the case under consideration." 3

2. There is another equally compelling consideration. Appellant undoubtedly had recourse to a remedy which under the law then in force could be availed of. It would have served the cause of justice better, not to mention the avoidance of needless expense on his part and the vexation to which appellees were subjected if he did reflect a little more on the matter. Then the valuable time of this Tribunal would not have been frittered away on a useless find hopeless appeal. It has, ever been the guiding principle from Alonso v. Villamor, 4 a 1910 decision, that a litigant should not be allowed to worship at the altar of technicality. That is not to dispense justice according to law. Parties, and much more so their counsel, should ever keep such an imperative of our legal system in mind. 5

WHEREFORE, the order of dismissal of September 26, 1966 is hereby affirmed. With costs against plaintiff.

G.R. No. L-17885 June 30, 1965

GABRIEL P. PRIETO, plaintiff-appellant, vs.

MEDEN ARROYO, JACK ARROYO, NONITO ARROYO and ZEFERINO ARROYO, JR., defendants-appellees.

Prila, Pardalis and Pejo for plaintiff-appellant.Quijano and Azores and J. P. Arroyo for defendants-appellees.

MAKALINTAL, J.:

Gabriel P. Prieto appealed to the Court of Appeals from the order of the Court of First Instance of Camarines Sur dismissing his complaint in Civil Case No. 4280. Since only questions of law are involved the appeal has been certified to this Court.

In 1948 Zeferino Arroyo, Sr. filed in the Court of First Instance of Camarines Sur a petition for registration of several parcels of land, including Lot No. 2, Plan Psu-106730 (L.R.C. No. 144; G.L.R.O. No. 1025). After the proper proceedings Original Certificate of Title No. 39 covering said lot was issued in his name. The same year and in the same Court Gabriel P. Prieto filed a petition for registration of an adjoining parcel of land, described as Lot No. 3, Plan Psu-117522 (L.R.C. No. 173; G.L.R.O. No. 1474). As a result Original Certificate of Title No. 11 was issued in his name.

After the death of Zeferino Arroyo, Sr., Original Certificate of Title No. 39 was cancelled and in lieu thereof Transfer Certificate of Title No. 227 was issued in the names of his heirs, the defendants in this case, namely Meden Jack, Joker, Nonito and Zeferino, Jr., all surnamed Arroyo.

On March 6, 1956 said heirs filed in the Court of First Instance of Camarines Sur a petition (L.R.C. No. 144; G.L.R.O. No. 1025; Special Proceedings No. 900) in which they claimed that the technical description set forth in their transfer certificate of title and in the original certificate of their predecessor did not conform with that embodied in the decision of the land registration court, and was less in area by some 157 square meters. They therefore prayed that said description be corrected pursuant to Section 112 of the Land Registration Act; that their certificate of title be cancelled and another one issued to them containing the correct technical description. The petition was filed in the registration record but was docketed as Special Proceedings No. 900.

On May 23, 1956 the court issued an order directing the Register of Deeds of Camarines Sur to "change, upon payment of his fees, the description in Transfer Certificate of Title No. 227 of Lot 2 in Plan Psu-106730 so as to make it conform to that embodied in the decision of the Court on March 8, 1950, and to correct therein the spelling of the name of one of the petitioners from 'Miden Arroyo' to 'Meden Arroyo'.

On November 29, 1956 Prieto filed against the defendants in the Court of First Instance of Camarines Sur (in the original registration records of the two lots) a petition to annul the order of May 23 in Special Proceedings No. 900. At the hearing of the petition on July 12, 1957 neither he nor his counsel appeared. Consequently, the trial court on the same day issued an order dismissing the

petition for failure to prosecute. A motion for reconsideration of that order was denied on September 5, 1957.

On September 2, 1958 Prieto filed against the same defendants the present action for annulment of Special Proceedings No. 900 and the order therein entered on May 23, 1956. He also prayed that the 157 square meters allegedly taken from his lot by virtue of said order be reconveyed to him.

Defendants moved to dismiss the complaint on the ground of res judicata. Plaintiff opposed, and on January 15, 1959 the court granted the motion. It is from the order of dismissal, plaintiff having failed to secure its reconsideration, that the appeal has been taken.

Appellant maintains that the institution of Special Proceedings No. 900 was irregular and illegal mainly because he was not notified thereof and the same was instituted almost six years after the issuance of the decree and title sought to be corrected, and hence the order of the court dated May 23, 1956 for the correction of the technical description in appellees' title is void ab initio.

The issue here, however, is not the validity of said Special Proceedings No. 900 but the propriety of the dismissal of appellant's complaint on the ground of res adjudicata. The validity of the said proceedings was the issue in the first case he filed. But because of his failure and that of his counsel to attend the hearing the court dismissed the case for failure to prosecute. Since no appeal was taken from the order of dismissal it had the effect of an adjudication upon the merits, the court not having provided otherwise (Rule 30, Section 3).

Appellant contends that said order could not have the effect of a judgment because the Court did not acquire jurisdiction over the persons of the respondents therein, defendants-appellees here, as they did not file any opposition or responsive pleading in that case. Appellees, on the other hand, allege that they had voluntarily submitted to the court's jurisdiction after they were served copies of the petition. This allegation finds support in the record, particularly in the following statement of appellant in his brief:

This petition was originally set for hearing on December 8, 1956, but was postponed to January 14, 1957, due to lack of notice to the respondents. Upon motion for postponements of respondents, now defendants-appellees, the hearing of January 14, 1957 was postponed to May 16, 1957. The hearing set for May 16, 1957 was again postponed upon motion of the respondents to July 12, 1957.

Appellant next points out that the lower court should not have dismissed his first petition for annulment because no "parole" evidence need be taken to support it, the matters therein alleged being parts of the records of L.R.C. No. 144, G.L.R.O. No. 1025, and L.R.C. 173, G.L.R.O. No. 1474, which were well within the judicial notice and cognizance of the said court.

In the first place, as a general rule, courts are not authorized to take judicial notice in the adjudication of cases pending before them, of the contents of

other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge (Municipal Council of San Pedro, Laguna, et al. v. Colegio de San Jose, et al., 65 Phil. 318). Secondly, if appellant had really wanted the court to take judicial notice of such records, he should have presented the proper request or manifestation to that effect instead of sending, by counsel, a telegraphic motion for postponement of hearing, which the court correctly denied. Finally, the point raised by counsel is now academic, as no appeal was taken from the order dismissing his first petition, and said order had long become final when the complaint in the present action was filed.

The contention that the causes of action in the two suits are different is untenable.

Both are based on the alleged nullity of Special Proceedings No. 900; in both appellant seeks that the order of correction of the title of appellees be set aside. Of no material significance is the fact that in the complaint in the instant case there is an express prayer for reconveyance of some 157 square meters of land, taken from appellant as a result of such correction of title. For that area would necessarily have reverted to appellant had his first petition prospered, the relief asked for by him being that "the Register of Deeds of Camarines Sur be ordered to amend Certificate of Title No. 332 by incorporating therein only and solely the description of Lot No. 2, plan Psu-106730 as appearing in the Decree No. 5165 and maintaining consequently the description limits and area of the adjoining land of the herein petitioner, Lot No. 3, plan Psu-117522, in accordance with Decree No. 2301 of Land Registration No. 173." The claim for damages as well as for other additional and alternative reliefs in the present case are not materially different from his prayer for "such other remedies, just and equitable in the premises" contained in the former one.

There being identity of parties, subject matter and cause of action between the two cases, the order of dismissal issued in the first constitutes a bar to the institution of the second.

The appealed order is affirmed, with costs against appellant.

G.R. No. 85423 May 6, 1991

JOSE TABUENA, petitioner, vs.COURT OF APPEALS and EMILIANO TABERNILLA, JR., respondents.

CRUZ, J.:p

The petitioner faults the decision of the trial court, as affirmed by the respondent court, for lack of basis. It is argued that the lower courts should not have taken into account evidence not submitted by the private respondent in accordance with the Rules of Court.

The subject of the dispute is a parcel of residential land consisting of about 440 square meters and situated in Poblacion, Makato, Aklan. In 1973, an action for recovery of ownership thereof was filed in the Regional Trial Court of Aklan by the estate of Alfredo Tabernilla against Jose Tabuena, the herein petitioner. After trial, judgment was rendered in favor of the plaintiff and the defendant was required to vacate the disputed lot. 1

As the trial court found, the lot was sold by Juan Peralta, Jr. sometime in 1926 to Alfredo Tabernilla while the two were in the United States. Tabernilla returned to the Philippines in 1934, and Damasa Timtiman, acting upon her son Juan's instruction, conveyed the subject land to Tabernilla. At the same time, she requested that she be allowed to stay thereon as she had been living there all her life. Tabernilla agreed provided she paid the realty taxes on the property, which she promised to do, and did. She remained on the said land until her death, following which the petitioner, her son and half-brother of Juan Peralta, Jr., took possession thereof. The complaint was filed when demand was made upon Tabuena to surrender the property and he refused, claiming it as his own.

The trial court rejected his defense that he was the absolute owner of the lot, which he inherited from his parents, who acquired it even before World War II and had been living thereon since then and until they died. Also disbelieved was his contention that the subject of the sale between Peralta and Tabernilla was a different piece of land planted to coconut trees and bounded on three sides by the Makato River.

Tabuena appealed to the respondent court, complaining that, in arriving at its factual findings, the trial court motu proprio took cognizance of Exhibits "A", "B" and "C", which had been marked by the plaintiff but never formally submitted in evidence. The trial court also erred when, to resolve the ownership of the subject lot, it considered the proceedings in another case involving the same parties but a different parcel of land.

The said exhibits are referred to in the pre-trial order as follows:

Plaintiff proceeded to mark the following exhibits: Exh. "A", letter dated October 4, 1921 addressed in Makato, Capiz, Philippines; Exh. "A-1", paragraph 2 of the letter indicating that the amount of P600.00—the first P300.00 and then another P300.00 as interest since October 4, 1921; Exh. "A-2", is paragraph 3 of the letter; Exh. "B", a Spanish document; Exh. "C", deed of conveyance filed by Tomasa Timtiman and Alfredo Tabernilla in 1923; and Exh. "C-1", paragraph 4 of Exh. "C".

In sustaining the trial court, the respondent court held that, contrary to the allegations of the appellant, the said exhibits were in fact formally submitted in evidence as disclosed by the transcript of stenographic notes, which it quoted

at length. 2 The challenged decision also upheld the use by the trial court of testimony given in an earlier case, to bolster its findings in the second case.

We have examined the record and find that the exhibits submitted were not the above-described documents but Exhibits "X" and "T" and their sub-markings, which were the last will and testament of Alfredo Tabernilla and the order of probate. It is not at all denied that the list of exhibits does not include Exhibits "A", "B" and "C". In fact, the trial court categorically declared that "Exhibits "A-1, "A-2", "B", "C" and "C-l," were not among those documents or exhibits formally offered for admission by plaintiff-administratrix." This is a clear contradiction of the finding of the appellate court, which seems to have confused Exhibits "A," "B" and "C" with Exhibits "X" and "Y", the evidence mentioned in the quoted transcript.

Rule 132 of the Rules of Court provides in Section 35 thereof as follows:

Sec. 35. Offer of evidence.—The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

The mere fact that a particular document is marked as an exhibit does not mean it has thereby already been offered as part of the evidence of a party. It is true that Exhibits "A," "B" and "C" were marked at the pre-trial of the case below, but this was only for the purpose of identifying them at that time. They were not by such marking formally offered as exhibits. As we said in Interpacific Transit, Inc. vs. Aviles, 3 "At the trial on the merits, the party may decide to formally offer (the exhibits) if it believes they will advance its cause, and then again it may decide not to do so at all. In the latter event, such documents cannot be considered evidence, nor can they be given any evidentiary value."

Chief Justice Moran explained the rationale of the rule thus:

. . . The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the patties at the trial. 4

We did say in People vs. Napat-a 5 that even if there be no formal offer of an exhibit, it may still be admitted against the adverse party if, first, it has been duly identified by testimony duly recorded and, second, it has itself been incorporated in the records of the case. But we do not find that these requirements have been satisfied in the case before us. The trial court said the said exhibits could be validly considered because, even if they had not been formally offered, one of the plaintiffs witnesses, Cunegunda Hernandez, testified on them at the trial and was even cross-examined by the defendant's counsel. We do not agree. Although she did testify, all she did was identify the documents. Nowhere in her testimony can we find a recital of the contents of the exhibits.

Thus, her interrogation on Exhibit "A" ran:

LEGASPI: That is this Exh. "A" about ?

A The translation of the letter.

Q What is the content of this Exh. "A", the letter of the sister of Juan Peralta to Alfredo Tabernilla?

Court: The best evidence is the document. Proceed. 6

She also did not explain the contents of the other two exhibits.

The respondent court also held that the trial court committed no reversible error in taking judicial notice of Tabuena's testimony in a case it had previously heard which was closely connected with the case before it. It conceded that as a general rule "courts are not authorized to take judicial notice, in the adjudication of cases pending before them, of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending b before the same judge. 7 Nevertheless, it applied the exception that:

. . . in the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending. 8

It is clear, though, that this exception is applicable only when, "in the absence of objection," "with the knowledge of the opposing party," or "at the request or with the consent of the parties," the case is clearly referred to or "the original or part of the records of the case are actually withdrawn from the archives" and "admitted as part of the record of the case then pending." These conditions have not been established here. On the contrary, the petitioner was completely unaware that his testimony in Civil Case No. 1327 was being considered by the trial court in the case then pending before it. As the petitioner puts it, the matter was never taken up at the trial and was "unfairly sprung" upon him, leaving him no opportunity to counteract.

The respondent court said that even assuming that the trial court improperly took judicial notice of the other case, striking off all reference thereto would not be fatal to the plaintiff's cause because "the said testimony was merely corroborative of other evidences submitted by the plaintiff." What "other evidences"? The trouble with this justification is that the exhibits it intends to corroborate, to wit, Exhibits "A", "B" and "C", have themselves not been formally submitted.

Considering the resultant paucity of the evidence for the private respondent, we feel that the complaint should have been dismissed by the trial court for failure of the plaintiff to substantiate its allegations. It has failed to prove that the subject lot was the same parcel of land sold by Juan Peralta, Jr. to Alfredo Tabernilla and not another property, as the petitioner contends. Even assuming it was the same lot, there is no explanation for the sale thereof by Juan Peralta, Jr., who was only the son of Damasa Timtiman. According to the trial court, "there is no question that before 1934 the land in question belonged to Damasa Timtiman." Juan Peralta, Jr. could not have validly conveyed title to property that did not belong to him unless he had appropriate authorization from the owner. No such authorization has been presented.

It is true that tax declarations are not conclusive evidence of ownership, as we have held in many cases. However, that rule is also not absolute and yields to the accepted and well-known exception. In the case at bar, it is not even disputed that the petitioner and his predecessors-in-interest have possessed the disputed property since even before World War II. In light of this uncontroverted fact, the tax declarations in their name become weighty and compelling evidence of the petitioner's ownership. As this Court has held:

While it is true that by themselves tax receipts and declarations of ownership for taxation purposes are not incontrovertible evidence of ownership they become strong evidence of ownership acquired by prescription when accompanied by proof of actual possession of the property. 9

It is only where payment of taxes is accompanied by actual possession of the land covered by the tax declaration that such circumstance may be material in supporting a claim of ownership. 10

The tax receipts accompanied by actual and continuous possession of the subject parcels of land by the respondents and their parents before them for more than 30 years qualify them to register title to the said subject parcels of land. 11

The Court can only wonder why, if Alfredo Tabernilla did purchase the property and magnanimously allowed Damasa Timtiman to remain there, he did not at least require her to pay the realty taxes in his name, not hers. The explanation given by the trial court is that he was not much concerned with the property, being a bachelor and fond only of the three dogs he had bought from America. That is specious reasoning. At best, it is pure conjecture. If he were really that unconcerned, it is curious that he should have acquired the property in the first place, even as dacion en pago. He would have demanded another form of payment if he did not have the intention at all of living on the land. On the other hand, if he were really interested in the property, we do not see why he did not have it declared in his name when the realty taxes thereon were paid by Damasa Timtiman or why he did not object when the payments were made in her own name.

In comparison, all the acts of Damasa Timtiman and Jose Tabuena indicate that they were the owners of the disputed property. Damasa Timtiman and her

forebears had been in possession thereof for more than fifty years and, indeed, she herself stayed there until she died. 12 She paid the realty taxes thereon in her own name. 13 Jose Tabuena built a house of strong materials on the lot. 14 He even mortgaged the land to the Development Bank of the Philippines and to two private persons who acknowledged him as the owner. 15 These acts denote ownership and are not consistent with the private respondent's claim that the petitioner was only an overseer with mere possessory rights tolerated by Tabernilla.

It is the policy of this Court to accord proper deference to the factual findings of the courts below and even to regard them as conclusive where there is no showing that they have been reached arbitrarily. The exception is where such findings do not conform to the evidence on record and appear indeed to have no valid basis to sustain their correctness. As in this case.

The conclusions of the trial court were based mainly on Exhibits "A", "B" and "C", which had not been formally offered as evidence and therefore should have been totally disregarded, conformably to the Rules of Court. The trial court also erred when it relied on the evidence submitted in Civil Case No. 1327 and took judicial notice thereof without the consent or knowledge of the petitioner, in violation of existing doctrine. Thus vitiated, the factual findings here challenged are as an edifice built upon shifting sands and should not have been sustained by the respondent court.

Our own finding is that the private respondent, as plaintiff in the lower court, failed to prove his claim of ownership over the disputed property with evidence properly cognizable under our adjudicative laws. By contrast, there is substantial evidence supporting the petitioner's contrary contentions that should have persuaded the trial judge to rule in s favor and dismiss the complaint.

WHEREFORE, the petition is GRANTED. The appealed decision is REVERSED and SET ASIDE, with costs against the private respondent. It is so ordered.

G.R. No. L-26053             February 21, 1967

CITY OF MANILA, plaintiff-appellee, vs.GERARDO GARCIA — CARMENCITA VILLANUEVA, MODESTA PARAYNO — NARCISO PARAYNO, JUAN ASPERAS, MARIA TABIA — SIMEON DILIMAN, AQUILINO BARRIOS — LEONORA RUIZ, LAUREANO DIZO, BERNABE AYUDA — LEOGARDA DE LOS SANTOS, ISABELO OBAOB — ANDREA RIPARIP, JOSE BARRIENTOS, URBANO RAMOS,1 ELENA RAMOS, ESTEFANIA NEPACINA, MODESTA SANCHEZ, MARCIAL LAZARO, MARCIANA ALANO, HONORIO BERIÑO — SEDORA ORAYLE, GLORIA VELASCO, WILARICO RICAMATA, BENEDICTO DIAZ, ANA DEQUIZ —

(MRS.) ALUNAN, LORENZO CARANDANG, JUAN PECAYO, FELICIDAD MIRANDA — EMIGDIO EGIPTO, defendants-appellants.

SANCHEZ, J.:

Plaintiff City of Manila is owner of parcels of land, forming one compact area, bordering Kansas, Vermont and Singalong streets in Malate, Manila, and covered by Torrens Titles Nos. 49763, 37082 and 37558. Shortly after liberation from 1945 to 1947, defendants entered upon these premises without plaintiff's knowledge and consent. They built houses of second-class materials, again without plaintiff's knowledge and consent, and without the necessary building permits from the city. There they lived thru the years to the present.

In November, 1947, the presence of defendants having previously been discovered, defendants Felicidad Miranda (Emigdio Egipto), Modesta C. Parayno, Benedicto Diaz, Laureano Dizo, Jose Barrientos, Elena Ramos, Estefania Nepacina, Modesta Sanchez, Honorio Beriño, Gloria Velasco, Ana Dequis Alunan and Benedicto Ofiaza (predecessor of defendant Carandang) were given by Mayor Valeriano E. Fugoso written permits — each labeled "lease contract" — to occupy specific areas in the property upon conditions therein set forth. Defendants Isabelo Obaob and Gerardo Garcia (in the name of Marta A. Villanueva) received their permits from Mayor Manuel de la Fuente on January 29 and March 18, respectively, both of 1948. The rest of the 23 defendants exhibited none.

For their occupancy, defendants were charged nominal rentals.1äwphï1.ñët

Following are the rentals due as of February, 1962:

NAMEArea in sq.m.

Monthly Rental

Amt. due from date of delinquency to Feb. 1962

1. Gerardo Garcia 66.00 P7.92 P1,628.97

2. Modesta C. Parayno 87.75 10.53 379.08

3. Juan Asperas 39.00 4.68 9.36

4. Maria Tabia 35.20 5.76 570.24

5. Aquilino Barrios(Leonora Ruiz) 54.00 4.32 99.36

6. Laureano Dizo 35.00 2.80 22.40

7. Bernabe Ayuda 39.60 3.17 323.34

8. Isabelo Obaob 75.52 9.06 208.38

9. Jose Barrientos 39.53 4.74 744.18

10. Cecilia Manzano inlieu of Urbano Ramos (deceased) 46.65 5.60

Paid up to Feb. 1962.

11. Elena Ramos 34.80 2.78 186.26

12. Estefania Nepacina 41.80 3.34 504.34

13. Modesta Sanchez 33.48 2.68 444.88

14. Marcial Lazaro 22.40 1.79 688.32

15. Marciana Alano 25.80 2.06 255.44

16. Honorio Beriño 24.00 1.92 188.16

17. Gloria Velasco 32.40 2.59 56.98

18. Wilarico Ricamata 45.83 3.67 739.68

19. Benedicto Diaz 40.20 4.82 Paid up toMarch 1962.

20. Ana Dequis Alunan 64.26 7.71 30.84

21. Lorenzo Carandang 45.03 5.40 437.40

22. Juan N. Pecayo 25.52 3.06 30.60

23. Felicidad Miranda 48.02 5.76 132.48

P7,580.69

Epifanio de los Santos Elementary School is close, though not contiguous, to the property. Came the need for this school's expansion; it became pressing. On September 14, 1961, plaintiff's City Engineer, pursuant to the Mayor's directive to clear squatters' houses on city property, gave each of defendants thirty (30) days to vacate and remove his construction or improvement on the premises. This was followed by the City Treasurer's demand on each defendant, made in February and March, 1962, for the payment of the amount due by reason of the occupancy and to vacate in fifteen (15) days. Defendants refused. Hence, this suit to recover possession.2

The judgment below directed defendants to vacate the premises; to pay the amounts heretofore indicated opposite their respective names; and to pay their monthly rentals from March, 1962, until they vacate the said premises, and the costs. Defendants appealed.

1. We are called upon to rule on the forefront question of whether the trial court properly found that the city needs the premises for school purposes.

The city's evidence on this point is Exhibit E, the certification of the Chairman, Committee on Appropriations of the Municipal Board. That document recites that the amount of P100,000.00 had been set aside in Ordinance 4566, the 1962-1963 Manila City Budget, for the construction of an additional building of the Epifanio de los Santos Elementary School. It is indeed correct to say that the court below, at the hearing, ruled out the admissibility of said document. But then, in the decision under review, the trial judge obviously revised his views. He there declared that there was need for defendants to vacate the premises for school expansion; he cited the very document, Exhibit E, aforesaid.

It is beyond debate that a court of justice may alter its ruling while the case is within its power, to make it conformable to law and justice.3 Such was done here. Defendants' remedy was to bring to the attention of the court its contradictory stance. Not having done so, this Court will not reopen the case solely for this purpose.4

Anyway, elimination of the certification, Exhibit E, as evidence, would not profit defendants. For, in reversing his stand, the trial judge could well have taken — because the was duty bound to take — judicial notice5 of Ordinance 4566. The reason being that the city charter of Manila requires all courts sitting therein to take judicial notice of all ordinances passed by the municipal board of Manila.6 And, Ordinance 4566 itself confirms the certification aforesaid that an appropriation of P100,000.00 was set aside for the "construction of additional building" of the Epifanio de los Santos Elementary School.

Furthermore, defendants' position is vulnerable to assault from a third direction. Defendants have absolutely no right to remain in the premises. The excuse that they have permits from the mayor is at best flimsy. The permits to occupy are recoverable on thirty days' notice. They have been asked to leave; they refused to heed. It is in this factual background that we say that the city's need for the premises is unimportant. The city's right to throw defendants out of the area cannot be gainsaid. The city's dominical right to possession is paramount. If error there was in the finding that the city needs the land, such error is harmless and will not justify reversal of the judgment below.7

2. But defendants insist that they have acquired the legal status of tenants. They are wrong.

They entered the land, built houses of second-class materials thereon without the knowledge and consent of the city. Their homes were erected without city permits.

These constructions are illegal. In a language familiar to all, defendants are squatters:

Since the last global war, squatting on another's property in this country has become a widespread vice. It was and is a blight. Squatters' areas pose problems of health, sanitation. They are breeding places for crime. They constitute proof that respect for the law and the rights of others, even those of the government, are being flouted. Knowingly, squatters have embarked on the pernicious act of occupying property whenever and wherever convenient to their interests — without as much as leave, and even against the will, of the owner. They are emboldened seemingly because of their belief that they could violate the law with impunity. The pugnaciousness of some of them has tied up the hands of legitimate owners. The latter are thus prevented from recovering possession by peaceful means. Government lands have not been spared by them. They know, of course, that intrusion into property, government or private, is wrong. But, then, the mills of justice grind slow, mainly because of lawyers who, by means, fair or foul, are quite often successful in procuring delay of the day of reckoning. Rampancy of forcible entry into government lands particularly, is abetted by the apathy of some public officials to enforce the government's rights. Obstinacy of these squatters is difficult to explain unless it is spawned by official tolerance, if not outright encouragement or protection. Said squatters have become insensible to the difference between right and wrong. To them, violation of law means nothing. With the result that squatting

still exists, much to the detriment of public interest. It is high time that, in this aspect, sanity and the rule of law be restored. It is in this environment that we look into the validity of the permits granted defendants herein.

These permits, erroneously labeled "lease" contracts, were issued by the mayors in 1947 and 1948 when the effects of the war had simmered down and when these defendants could have very well adjusted themselves. Two decades have now elapsed since the unlawful entry. Defendants could have, if they wanted to, located permanent premises for their abode. And yet, usurpers that they are, they preferred to remain on city property.

Defendants' entry as aforesaid was illegal. Their constructions are as illegal, without permits.8 The city charter enjoins the mayor to "safeguard all the lands" of the City of Manila.9

Surely enough, the permits granted did not "safeguard" the city's land in question. It is our considered view that the Mayor of the City of Manila cannot legalize forcible entry into public property by the simple expedient of giving permits, or, for that matter, executing leases.

Squatting is unlawful and no amount of acquiescence on the part of the city officials will elevate it into a lawful act. In principle, a compound of illegal entry and official permit to stay is obnoxious to our concept of proper official norm of conduct. Because, such permit does not serve social justice; it fosters moral decadence. It does not promote public welfare; it abets disrespect for the law. It has its roots in vice; so it is an infected bargain. Official approval of squatting should not, therefore, be permitted to obtain in this country where there is an orderly form of government.

We, accordingly, rule that the Manila mayors did not have authority to give permits, written or oral, to defendants, and that the permits herein granted are null and void.

3. Let us look into the houses and constructions planted by defendants on the premises. They clearly hinder and impair the use of that property for school purposes. The courts may well take judicial notice of the fact that housing school children in the elementary grades has been and still is a perennial problem in the city. The selfish interests of defendants must have to yield to the general good. The public purpose of constructing the school building annex is paramount.10

In the situation thus obtaining, the houses and constructions aforesaid constitute public nuisance per se. And this, for the reason that they hinder and impair the use of the property for a badly needed school building, to the prejudice of the education of the youth of the land.11 They shackle the hands of the government and thus obstruct performance of its constitutionally ordained obligation to establish and maintain a complete and adequate system of public education, and more, to "provide at least free public primary instruction".12

Reason dictates that no further delay should be countenanced. The public nuisance could well have been summarily abated by the city authorities themselves, even without the aid of the courts.13

4. Defendants challenge the jurisdiction of the Court of First Instance of Manila. They say that the case should have been started in the municipal court. They prop up their position by the averment that notice for them to vacate was only served in September, 1961, and suit was started in July, 1962. Their legal ground is Section 1, Rule 70 of the Rules of Court. We have reached the conclusion that their forcible entry dates back to the period from 1945 to 1947. That entry was not legalized by the permits. Their possession continued to remain illegal from incipiency. Suit was filed long after the one-year limitation set forth in Section 1 of Rule 70. And the Manila Court of First Instance has jurisdiction.14

Upon the premises, we vote to affirm the judgment under review. Costs against defendants-appellants. So ordered.

G.R. No. 152392 May 26, 2005

EXPERTRAVEL & TOURS, INC., petitioner, vs.COURT OF APPEALS and KOREAN AIRLINES, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 61000 dismissing the petition for certiorari and mandamus filed by Expertravel and Tours, Inc. (ETI).

The Antecedents

Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and licensed to do business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim, while its appointed counsel was Atty. Mario Aguinaldo and his law firm.

On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint2 against ETI with the Regional Trial Court (RTC) of Manila, for the collection of the principal amount of P260,150.00, plus attorney’s fees and exemplary damages. The verification and certification against forum shopping was signed by Atty. Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint.

ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and was registered as such with the Securities and Exchange Commission (SEC) as required by the Corporation Code of the Philippines. It was further alleged that Atty. Aguinaldo was also the corporate secretary of KAL. Appended to the said opposition was the identification card of Atty. Aguinaldo, showing that he was the lawyer of KAL.

During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file the complaint through a resolution of the KAL Board of Directors approved during a special meeting held on June 25, 1999. Upon his motion, KAL was given a period of 10 days within which to submit a copy of the said resolution. The trial court granted the motion. Atty. Aguinaldo subsequently filed other similar motions, which the trial court granted.

Finally, KAL submitted on March 6, 2000 an Affidavit3 of even date, executed by its general manager Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25, 1999, which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the corporation had no written copy of the aforesaid resolution.

On April 12, 2000, the trial court issued an Order4 denying the motion to dismiss, giving credence to the claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directors indeed conducted a teleconference on June 25, 1999, during which it approved a resolution as quoted in the submitted affidavit.

ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the court to take judicial notice of the said teleconference without any prior hearing. The trial court denied the motion in its Order5 dated August 8, 2000.

ETI then filed a petition for certiorari and mandamus, assailing the orders of the RTC. In its comment on the petition, KAL appended a certificate signed by Atty. Aguinaldo dated January 10, 2000, worded as follows:

SECRETARY’S/RESIDENT AGENT’S CERTIFICATE

KNOW ALL MEN BY THESE PRESENTS:

I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed Corporate Secretary and Resident Agent of KOREAN AIRLINES, a foreign corporation duly organized and existing under and by virtue of the laws of the Republic of Korea and also duly registered and authorized to do business in the Philippines, with office address at Ground Floor, LPL Plaza Building, 124 Alfaro St., Salcedo Village, Makati City, HEREBY CERTIFY that during a special meeting of the Board of Directors of the Corporation held on June 25, 1999 at which a quorum was present, the said Board unanimously passed, voted upon and approved the following resolution which is now in full force and effect, to wit:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-Trial Proceedings and enter into a compromise agreement relative to the above-mentioned claim.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January, 1999, in the City of Manila, Philippines.

(Sgd.)

MARIO A. AGUINALDOResident Agent

SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A. Aguinaldo exhibiting to me his Community Tax Certificate No. 14914545, issued on January 7, 2000 at Manila, Philippines.

Doc. No. 119;Page No. 25;Book No. XXIVSeries of 2000.

(Sgd.) ATTY. HENRY D. ADASANotary Public Until December 31, 2000PTR #889583/MLA 1/3/20006

On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that the verification and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the Rules of Court. According to the appellate court, Atty. Aguinaldo had been duly authorized by the board resolution approved on June 25, 1999, and was the resident agent of KAL. As such, the RTC could not be faulted for taking judicial notice of the said teleconference of the KAL Board of Directors.

ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI, now the petitioner, comes to the Court by way of petition for review on certiorari and raises the following issue:

DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONED DECISION AND WHEN IT ISSUED ITS QUESTIONED RESOLUTION, ANNEXES A AND B OF THE INSTANT PETITION?7

The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can be determined only from the contents of the complaint and not by documents or pleadings outside thereof. Hence, the trial court committed grave abuse of discretion amounting to excess of jurisdiction, and the CA erred in considering the affidavit of the respondent’s general manager, as well as the Secretary’s/Resident Agent’s Certification and the resolution of the board of directors contained therein, as proof of compliance with the requirements of Section 5, Rule 7 of the Rules of Court. The petitioner also maintains that the RTC cannot take judicial notice of the said teleconference without prior hearing, nor any motion therefor. The petitioner reiterates its submission that the teleconference and the resolution adverted to by the respondent was a mere fabrication.

The respondent, for its part, avers that the issue of whether modern technology is used in the field of business is a factual issue; hence, cannot be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. On the merits of the petition, it insists that Atty. Aguinaldo, as the resident agent and corporate secretary, is authorized to sign and execute the certificate of non-forum shopping required by Section 5, Rule 7 of the Rules of Court, on top of the board resolution approved during the teleconference of June 25, 1999. The respondent insists that "technological advances in this time and age are as commonplace as daybreak." Hence, the courts may take judicial notice that the Philippine Long Distance Telephone Company, Inc. had provided a record of corporate conferences and meetings through FiberNet using fiber-optic transmission technology, and that such technology facilitates voice and image transmission with ease; this makes constant communication between a foreign-based office and its Philippine-based branches faster and easier, allowing for cost-cutting in terms of travel concerns. It points out that even the E-Commerce Law has recognized this modern technology. The respondent posits that the courts are aware of this development in technology; hence, may take judicial notice thereof without need of hearings. Even if such hearing is required, the requirement is nevertheless satisfied if a party is allowed to file pleadings by way of comment or opposition thereto.

In its reply, the petitioner pointed out that there are no rulings on the matter of teleconferencing as a means of conducting meetings of board of directors for purposes of passing a resolution; until and after teleconferencing is recognized as a legitimate means of gathering a quorum of board of directors, such cannot be taken judicial notice of by the court. It asserts that safeguards must first be set up to prevent any mischief on the public or to protect the general public

from any possible fraud. It further proposes possible amendments to the Corporation Code to give recognition to such manner of board meetings to transact business for the corporation, or other related corporate matters; until then, the petitioner asserts, teleconferencing cannot be the subject of judicial notice.

The petitioner further avers that the supposed holding of a special meeting on June 25, 1999 through teleconferencing where Atty. Aguinaldo was supposedly given such an authority is a farce, considering that there was no mention of where it was held, whether in this country or elsewhere. It insists that the Corporation Code requires board resolutions of corporations to be submitted to the SEC. Even assuming that there was such a teleconference, it would be against the provisions of the Corporation Code not to have any record thereof.

The petitioner insists that the teleconference and resolution adverted to by the respondent in its pleadings were mere fabrications foisted by the respondent and its counsel on the RTC, the CA and this Court.

The petition is meritorious.

Section 5, Rule 7 of the Rules of Court provides:

SEC. 5. Certification against forum shopping.— The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory8 and that the failure to comply with this requirement cannot be excused. The certification is a peculiar and personal responsibility of the party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action.

Hence, the certification must be accomplished by the party himself because he has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or tribunals. Even his counsel may be unaware of such facts.9 Hence, the requisite certification executed by the plaintiff’s counsel will not suffice.10

In a case where the plaintiff is a private corporation, the certification may be signed, for and on behalf of the said corporation, by a specifically authorized person, including its retained counsel, who has personal knowledge of the facts required to be established by the documents. The reason was explained by the Court in National Steel Corporation v. Court of Appeals,11 as follows:

Unlike natural persons, corporations may perform physical actions only through properly delegated individuals; namely, its officers and/or agents.

…

The corporation, such as the petitioner, has no powers except those expressly conferred on it by the Corporation Code and those that are implied by or are incidental to its existence. In turn, a corporation exercises said powers through its board of directors and/or its duly-authorized officers and agents. Physical acts, like the signing of documents, can be performed only by natural persons duly-authorized for the purpose by corporate by-laws or by specific act of the board of directors. "All acts within the powers of a corporation may be performed by agents of its selection; and except so far as limitations or restrictions which may be imposed by special charter, by-law, or statutory provisions, the same general principles of law which govern the relation of agency for a natural person govern the officer or agent of a corporation, of whatever status or rank, in respect to his power to act for the corporation; and agents once appointed, or members acting in their stead, are subject to the same rules, liabilities and incapacities as are agents of individuals and private persons."

…

… For who else knows of the circumstances required in the Certificate but its own retained counsel. Its regular officers, like its board chairman and president, may not even know the details required therein.

Indeed, the certificate of non-forum shopping may be incorporated in the complaint or appended thereto as an integral part of the complaint. The rule is that compliance with the rule after the filing of the complaint, or the dismissal of a complaint based on its non-compliance with the rule, is impermissible. However, in exceptional circumstances, the court may allow subsequent compliance with the rule.12 If the authority of a party’s counsel to execute a certificate of non-forum shopping is disputed by the adverse party, the former is required to show proof of such authority or representation.

In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty. Aguinaldo to execute the requisite verification and certificate of non-

forum shopping as the resident agent and counsel of the respondent. It was, thus, incumbent upon the respondent, as the plaintiff, to allege and establish that Atty. Aguinaldo had such authority to execute the requisite verification and certification for and in its behalf. The respondent, however, failed to do so.

The verification and certificate of non-forum shopping which was incorporated in the complaint and signed by Atty. Aguinaldo reads:

I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre, 1564 A. Mabini cor. P. Gil Sts., Ermita, Manila, after having sworn to in accordance with law hereby deposes and say: THAT -

1. I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case and have caused the preparation of the above complaint;

2. I have read the complaint and that all the allegations contained therein are true and correct based on the records on files;

3. I hereby further certify that I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency. If I subsequently learned that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any tribunal or agency, I will notify the court, tribunal or agency within five (5) days from such notice/knowledge.

(Sgd.)

MARIO A. AGUINALDOAffiantCITY OF MANILA

SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting to me his Community Tax Certificate No. 00671047 issued on January 7, 1999 at Manila, Philippines.

Doc. No. 1005;Page No. 198;Book No. XXISeries of 1999.

(Sgd.)

ATTY. HENRY D. ADASANotary PublicUntil December 31, 2000PTR No. 320501 Mla. 1/4/9913

As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldo had been authorized to execute the certificate of non-forum shopping

by the respondent’s Board of Directors; moreover, no such board resolution was appended thereto or incorporated therein.

While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does not mean that he is authorized to execute the requisite certification against forum shopping. Under Section 127, in relation to Section 128 of the Corporation Code, the authority of the resident agent of a foreign corporation with license to do business in the Philippines is to receive, for and in behalf of the foreign corporation, services and other legal processes in all actions and other legal proceedings against such corporation, thus:

SEC. 127. Who may be a resident agent. – A resident agent may either be an individual residing in the Philippines or a domestic corporation lawfully transacting business in the Philippines: Provided, That in the case of an individual, he must be of good moral character and of sound financial standing.

SEC. 128. Resident agent; service of process. – The Securities and Exchange Commission shall require as a condition precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such corporation file with the Securities and Exchange Commission a written power of attorney designating some persons who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against such corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if served upon the duly-authorized officers of the foreign corporation as its home office.14

Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. This is because while a resident agent may be aware of actions filed against his principal (a foreign corporation doing business in the Philippines), such resident may not be aware of actions initiated by its principal, whether in the Philippines against a domestic corporation or private individual, or in the country where such corporation was organized and registered, against a Philippine registered corporation or a Filipino citizen.

The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was not specifically authorized to execute the said certification. It attempted to show its compliance with the rule subsequent to the filing of its complaint by submitting, on March 6, 2000, a resolution purporting to have been approved by its Board of Directors during a teleconference held on June 25, 1999, allegedly with Atty. Aguinaldo and Suk Kyoo Kim in attendance. However, such attempt of the respondent casts veritable doubt not only on its claim that such a teleconference was held, but also on the approval by the Board of Directors of the resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping.

In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of modern technology, persons in one location may confer with other persons in other places, and, based on the said premise, concluded that Suk

Kyoo Kim and Atty. Aguinaldo had a teleconference with the respondent’s Board of Directors in South Korea on June 25, 1999. The CA, likewise, gave credence to the respondent’s claim that such a teleconference took place, as contained in the affidavit of Suk Kyoo Kim, as well as Atty. Aguinaldo’s certification.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety.[15] Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.16

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.17

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people together under one roof even though they are separated by hundreds of miles.18 This type of group communication may be used in a number of ways, and have three basic types: (1) video conferencing - television-like communication augmented with sound; (2) computer conferencing - printed communication through keyboard terminals, and (3) audio-conferencing-verbal communication via the telephone with optional capacity for telewriting or telecopying.19

A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced in the 1960’s with American Telephone and Telegraph’s Picturephone. At that time, however, no demand existed for the new technology. Travel costs were reasonable and consumers were unwilling to pay the monthly service charge for using the picturephone, which was regarded as more of a novelty than as an actual means for everyday communication.20 In time, people found it advantageous to hold teleconferencing in the course of

business and corporate governance, because of the money saved, among other advantages include:

1. People (including outside guest speakers) who wouldn’t normally attend a distant FTF meeting can participate.

2. Follow-up to earlier meetings can be done with relative ease and little expense.

3. Socializing is minimal compared to an FTF meeting; therefore, meetings are shorter and more oriented to the primary purpose of the meeting.

4. Some routine meetings are more effective since one can audio-conference from any location equipped with a telephone.

5. Communication between the home office and field staffs is maximized.

6. Severe climate and/or unreliable transportation may necessitate teleconferencing.

7. Participants are generally better prepared than for FTF meetings.

8. It is particularly satisfactory for simple problem-solving, information exchange, and procedural tasks.

9. Group members participate more equally in well-moderated teleconferences than an FTF meeting.21

On the other hand, other private corporations opt not to hold teleconferences because of the following disadvantages:

1. Technical failures with equipment, including connections that aren’t made.

2. Unsatisfactory for complex interpersonal communication, such as negotiation or bargaining.

3. Impersonal, less easy to create an atmosphere of group rapport.

4. Lack of participant familiarity with the equipment, the medium itself, and meeting skills.

5. Acoustical problems within the teleconferencing rooms.

6. Difficulty in determining participant speaking order; frequently one person monopolizes the meeting.

7. Greater participant preparation time needed.

8. Informal, one-to-one, social interaction not possible.22

Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of group communication. Although it may be easier to communicate via teleconferencing, it may also be easier to miscommunicate. Teleconferencing cannot satisfy the individual needs of every type of meeting.23

In the Philippines, teleconferencing and videoconferencing of members of board of directors of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with related to such conferences.24 Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance.

Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along with the respondent’s Board of Directors, the Court is not convinced that one was conducted; even if there had been one, the Court is not inclined to believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification against forum shopping.

The records show that the petitioner filed a motion to dismiss the complaint on the ground that the respondent failed to comply with Section 5, Rule 7 of the Rules of Court. The respondent opposed the motion on December 1, 1999, on its contention that Atty. Aguinaldo, its resident agent, was duly authorized to sue in its behalf. The respondent, however, failed to establish its claim that Atty. Aguinaldo was its resident agent in the Philippines. Even the identification card25 of Atty. Aguinaldo which the respondent appended to its pleading merely showed that he is the company lawyer of the respondent’s Manila Regional Office.

The respondent, through Atty. Aguinaldo, announced the holding of the teleconference only during the hearing of January 28, 2000; Atty. Aguinaldo then prayed for ten days, or until February 8, 2000, within which to submit the board resolution purportedly authorizing him to file the complaint and execute the required certification against forum shopping. The court granted the motion.26 The respondent, however, failed to comply, and instead prayed for 15 more days to submit the said resolution, contending that it was with its main office in Korea. The court granted the motion per its Order27 dated February 11, 2000. The respondent again prayed for an extension within which to submit the said resolution, until March 6, 2000.28 It was on the said date that the respondent submitted an affidavit of its general manager Suk Kyoo Kim, stating, inter alia, that he and Atty. Aguinaldo attended the said teleconference on June 25, 1999, where the Board of Directors supposedly approved the following resolution:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to

prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-trial Proceedings and enter into a compromise agreement relative to the above-mentioned claim.29

But then, in the same affidavit, Suk Kyoo Kim declared that the respondent "do[es] not keep a written copy of the aforesaid Resolution" because no records of board resolutions approved during teleconferences were kept. This belied the respondent’s earlier allegation in its February 10, 2000 motion for extension of time to submit the questioned resolution that it was in the custody of its main office in Korea. The respondent gave the trial court the impression that it needed time to secure a copy of the resolution kept in Korea, only to allege later (via the affidavit of Suk Kyoo Kim) that it had no such written copy. Moreover, Suk Kyoo Kim stated in his affidavit that the resolution was embodied in the Secretary’s/Resident Agent’s Certificate signed by Atty. Aguinaldo. However, no such resolution was appended to the said certificate.

The respondent’s allegation that its board of directors conducted a teleconference on June 25, 1999 and approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the additional fact that no such allegation was made in the complaint. If the resolution had indeed been approved on June 25, 1999, long before the complaint was filed, the respondent should have incorporated it in its complaint, or at least appended a copy thereof. The respondent failed to do so. It was only on January 28, 2000 that the respondent claimed, for the first time, that there was such a meeting of the Board of Directors held on June 25, 1999; it even represented to the Court that a copy of its resolution was with its main office in Korea, only to allege later that no written copy existed. It was only on March 6, 2000 that the respondent alleged, for the first time, that the meeting of the Board of Directors where the resolution was approved was held via teleconference.

Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed a Secretary’s/Resident Agent’s Certificate alleging that the board of directors held a teleconference on June 25, 1999. No such certificate was appended to the complaint, which was filed on September 6, 1999. More importantly, the respondent did not explain why the said certificate was signed by Atty. Aguinaldo as early as January 9, 1999, and yet was notarized one year later (on January 10, 2000); it also did not explain its failure to append the said certificate to the complaint, as well as to its Compliance dated March 6, 2000. It was only on January 26, 2001 when the respondent filed its comment in the CA that it submitted the Secretary’s/Resident Agent’s Certificate30 dated January 10, 2000.

The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never took place, and that the resolution allegedly approved by the respondent’s Board of Directors during the said teleconference was a mere concoction purposefully foisted on the RTC, the CA and this Court, to avert the dismissal of its complaint against the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Court of Manila is hereby ORDERED to dismiss, without prejudice, the complaint of the respondent.

SO ORDERED.

G.R. No. 156052 March 7, 2007

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO, and BONIFACIO S. TUMBOKON, Petitioners, vs.HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, Respondent.

D E C I S I O N

CORONA, J.:

In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to enforce Ordinance No. 8027.

The antecedents are as follows.

On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.2 Respondent mayor approved the ordinance on November 28, 2001.3 It became effective on December 28, 2001, after its publication.4

Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle described as the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of the society.5 This is evident from Sections 1 and 3 thereof which state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation.

However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU)6 with the oil companies in which they agreed that "the scaling down of the Pandacan Terminals [was] the most viable and practicable option." Under the MOU, the oil companies agreed to perform the following:

Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. xxx

Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.

Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL COMPANIES.

The City of Manila and the DOE, on the other hand, committed to do the following:

Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the spirit and intent thereof.

Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale down program.

Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the provisions of this MOU.

Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all efforts at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties.

The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution, the Sanggunian declared that the MOU was effective only for a period of six months starting July 25, 2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 139 extending the validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special business permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance.10

Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor Atienza be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil companies.11

The issues raised by petitioners are as follows:

1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals, and

2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No. 8027.12

Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local Government Code (RA 7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals of the oil companies. Instead, he has allowed them to stay.

Respondent’s defense is that Ordinance No. 8027 has been superseded by the MOU and the resolutions.14 However, he also confusingly argues that the ordinance and MOU are not inconsistent with each other and that the latter has not amended the former. He insists that the ordinance remains valid and in full force and effect and that the MOU did not in any way prevent him from enforcing and implementing it. He maintains that the MOU should be considered as a mere guideline for its full implementation.15

Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary writ that is employed to compel the performance, when refused, of a ministerial duty that is already imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner should have a well-defined, clear and certain legal right to the performance of the act and it must be the clear and imperative duty of respondent to do the act required to be done.17

Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will not issue.18

To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a public right and its object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest.19 Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the city’s ordinances. Respondent never questioned the right of petitioners to institute this proceeding.

On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and ordinances relative to the governance of the city.">20 One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It

might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.23

The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian have made the respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance No. 8027.

SO ORDERED.

G.R. No. L-55960 November 24, 1988

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners, vs.AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE COURT OF APPEALS, respondents.

CORTES, J.:

Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing, leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among others that (a) they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]

The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and desirous to become the administratrix of the estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court, finding among others that:

(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]

(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 64- 65.]

held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET ASIDE and a new judgment rendered as follows:

(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego, an unmarried woman with whom he lived as husband and wife without benefit of marriage for many years:

(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to Yao Kee in China had not been proven to be valid to the laws of the Chinese People's Republic of China (sic);

(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor and Diesel Parts Supply to be valid and accordingly, said property should be excluded from the estate of the deceased Sy Kiat; and

(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.]

From said decision both parties moved for partial reconsideration, which was however denied by respondent court. They thus interposed their respective appeals to this Court.

Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No. 56045. **

The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June 22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981 reconsidered the

denial and decided to give due course to this petition. Herein petitioners assign the following as errors:

I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]

I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom was conclusively proven. To buttress this argument they rely on the following testimonial and documentary evidence.

First, the testimony of Yao Kee summarized by the trial court as follows:

Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China; that she does not have a marriage certificate because the practice during that time was for elders to agree upon the betrothal of their children, and in her case, her elder brother was the one who contracted or entered into [an] agreement with the parents of her husband; that the agreement was that she and Sy Mat would be married, the wedding date was set, and invitations were sent out; that the said agreement was complied with; that she has five children with Sy Kiat, but two of them died; that those who are alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook Wah who is already 38 years old; that Sze Sook Wah was born on November 7, 1939; that she and her husband, Sy Mat, have been living in FooKien, China before he went to the Philippines on several occasions; that the practice during the time of her marriage was a written document [is exchanged] just between the parents of the bride and the parents of the groom, or any elder for that matter; that in China, the custom is that there is a go- between, a sort of marriage broker who is known to both parties who would talk to the parents of the bride-to-be; that if the parents of the bride-to-be agree to have the groom-to-be their son in-law, then they agree on a date as an engagement day; that on engagement day, the parents of the groom would bring some pieces of jewelry to the parents of the bride-to-be, and then one month after that, a date would be set for the wedding, which in her case, the wedding date to Sy Kiat was set on January 19, 1931; that during the wedding the bridegroom brings with him a couch (sic) where the bride would ride and on that same day, the parents of the bride would give the dowry for her daughter and then the document would be signed by the parties but there is no solemnizing officer as is known in the Philippines; that during the wedding day, the document is signed only by the parents of the bridegroom as well as by the parents of the bride; that the parties themselves do not sign the document; that the bride would then be placed in a carriage where she would be brought to the town of the bridegroom and before departure the bride would be covered with a sort of a veil; that upon reaching the town of the bridegroom, the bridegroom takes away the veil; that during her wedding to Sy Kiat (according to said Chinese

custom), there were many persons present; that after Sy Kiat opened the door of the carriage, two old ladies helped her go down the carriage and brought her inside the house of Sy Mat; that during her wedding, Sy Chick, the eldest brother of Sy Kiat, signed the document with her mother; that as to the whereabouts of that document, she and Sy Mat were married for 46 years already and the document was left in China and she doubt if that document can still be found now; that it was left in the possession of Sy Kiat's family; that right now, she does not know the whereabouts of that document because of the lapse of many years and because they left it in a certain place and it was already eaten by the termites; that after her wedding with Sy Kiat, they lived immediately together as husband and wife, and from then on, they lived together; that Sy Kiat went to the Philippines sometime in March or April in the same year they were married; that she went to the Philippines in 1970, and then came back to China; that again she went back to the Philippines and lived with Sy Mat as husband and wife; that she begot her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI decision, pp. 13-15; Rollo, pp. 50-52.]

Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate is issued by the Chinese government, a document signed by the parents or elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp. 52-53.]

Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission to her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p. 17; Rollo, p. 54.]

Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where the following entries are found: "Marital status—Married"; "If married give name of spouses—Yao Kee"; "Address-China; "Date of marriage—1931"; and "Place of marriage—China" [Exhibit "SS-1".]

Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the following entries are likewise found: "Civil status—Married"; and, 'If married, state name and address of spouse—Yao Kee Chingkang, China" [Exhibit "4".]

And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's Republic of China to the effect that "according to the information available at the Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".]

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in this country, except bigamous, Polygamous, or incestuous marriages, as determined by Philippine law. (Emphasis supplied.) ***

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten foreign law, Rule 130 section 45 states that:

SEC. 45. Unwritten law.—The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts.

Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:

SEC. 25. Proof of public or official record.—An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office.

The Court has interpreted section 25 to include competent evidence like the testimony of a witness to prove the existence of a written foreign law [Collector

of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]

In the case at bar petitioners did not present any competent evidence relative to the law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only because they areself-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction.

Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]

This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]

Moreover a reading of said case would show that the party alleging the foreign marriage presented a witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting parties constitute the essential requisite for a marriage to be considered duly solemnized in China. Based on his testimony, which as found by the Court is uniformly corroborated by authors on the subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.]

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the law of China on marriage in the aforecited case, petitioners however have not shown any proof that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to the instant case. They aver that the judicial pronouncement in the Memoracion case, that the testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds true in this case.

The Memoracion case however is not applicable to the case at bar as said case did not concern a foreign marriage and the issue posed was whether or not the oral testimony of a spouse is competent evidence to prove the fact of marriage in a complaint for adultery.

Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status of private respondents.

Respondent court found the following evidence of petitioners' filiation:

(1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any: give number of children—Four"; and, "Name—All living in China" [Exhibit "SS-1";]

(2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977, pp. 9-11;] and,

(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local Civil Registrar of Manila to support Sze Sook Wah's application for a marriage license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]

Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters with his Chinese wife, two of whom—Sook Wah and Sze Kai Cho—she knows, and one adopted son [TSN, December 6,1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws of China, they cannot be accorded the status of legitimate children but only that of acknowledged natural children. Petitioners are natural children, it appearing that at the time of their conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another [See Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood [See Art. 271, Civil Code.]

Private respondents on the other hand are also the deceased's acknowledged natural children with Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of marriage. They have in their favor their father's acknowledgment, evidenced by a compromise agreement entered into by and between their parents and approved by the Court of First Instance on February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego but likewise made provisions for their support and future inheritance, thus:

2. The parties also acknowledge that they are common-law husband and wife and that out of such relationship, which they have likewise decided to definitely and finally terminate effective immediately, they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and Rodolfo Sy, born on May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties mutually agree and covenant that—

(a) The stocks and merchandize and the furniture and equipments ..., shall be divided into two equal shares between, and distributed to, Sy Kiat who shall ownone-half of the total and the other half to Asuncion Gillego who shall transfer the same to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.

(b) the business name and premises ... shall be retained by Sy Kiat. However, it shall be his obligation to give to the aforenamed children an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the rental of the two doors of the same building now occupied by Everett Construction.

(5) With respect to the acquisition, during the existence of the common-law husband-and-wife relationship between the parties, of the real estates and properties registered and/or appearing in the name of Asuncion Gillego ... , the parties mutually agree and covenant that the said real estates and properties shall be transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime ... [Exhibit "D".] (Emphasis supplied.)

This compromise agreement constitutes a statement before a court of record by which a child may be voluntarily acknowledged [See Art. 278, Civil Code.]

Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic Relations Court.

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to the Juvenile and Domestic Relations Court:

SEC. 91-A. Creation and Jurisdiction of the Court.—

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive original jurisdiction to hear and decide the following cases:

(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and acknowledgment;

(3) Annulment of marriages, relief from marital obligations, legal separation of spouses, and actions for support;

(4) Proceedings brought under the provisions of title six and title seven, chapters one to three of the civil code;

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no longer necessary to pass upon the issue of jurisdiction raised by petitioners.

Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec. 91-A last paragraph that:

If any question involving any of the above matters should arise as an incident in any case pending in the ordinary court, said incident shall be determined in the main case.

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:

It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case involving paternity and acknowledgment may be ventilated as an incident in the intestate or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal provision presupposes that such an administration proceeding is pending or existing and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent court.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

G.R. No. L-8200 March 17, 1914

LEONARD LUCIDO, plaintiff-appellee, vs.GELASIO CALUPITAN, ET AL., defendants-appellants.

Pedro Guevara for appellants.Ramon Diokno for appellee.

TRENT, J.:

In this case it appears that some chattels and real estate belonging to the plaintiff, Lucido, were regularly sold at an execution sale on February 10, 1903, to one Rosales, who the text day transferred a one-half interest in the property of Zolaivar. On March 30, 1903, a public document was executed and signed by all of the above parties and the defendant, Gelasio Calupitan, wherein it was stated that Rosales and Zolaivar, with the consent of Lucido, sold all their rights had obligation pertaining to the property in question to Calupitan for the amount of the purchase price together with 1 per cent per month interest thereon up to the time of redemption, or 1,687 Mexican dollars, plus 33.74 Mexican dollars, the amount of the interest. It will be observed that the computation of the transfer price is in accordance with section 465 of the Code of Civil Procedure. On the same day Lucido and Calupitan executed the following document:

I, Gelasio Calupitan y Agarao, married, certify that I have delivered this statement to Leonardo Lucido y Vidal to witness that his lands, which appear in the instrument I hold from the deputy sheriff and for which he has accepted money from me, I have ceded to him all the irrigated lands until such time as he may repurchase all said lands from me (not only he irrigated ones), as also the Vienna chairs, the five-lamp chandelier, a lamp stand, two wall tables, and a marble table; no coconut tree on said irrigated land is included. Apart from this, our real agreement is to permit three (3) whole year to elapse, reckoned from the date of this instrument, which has been drawn up n duplicate, before he may redeem or repurchase them from me.

The lower court held that this document constituted a sale with the right to conventional redemption set forth in articles 1507 et seq. of the Civil Code. The present action not having been instituted until February 17, 1910, the fur the question arose as to whether the redemption period had expired, which the lower court decided in the negative. The lower court further found as a fact that Lucido had prior to the institution of the action offered the redemption price to the defendant, who refused it, and that this offer was a sufficient compliance with article 1518 of the Civil Code. The decision of the lower court was that the property in question should be returned to the plaintiff. From this judgment the defendant appealed, and all three of the above rulings of the court are assigned as errors.

1. Considerable doubt might arise as to the correctness of the ruling of the lower court upon the first question, if the document executed by the execution purchasers and the parties to this action stood alone. In that document it appears that Calupitan acquired the rights and obligations of the execution purchasers pertaining to the property in question. These rights and obligations are defined in the Code of Civil Procedure to be the ownership of the property sold, subject only to the right of redemption on the part of the judgment debtor or a redemptioner, within one year from the date of the sale. (Secs. 463-465, Code Civ. Proc.) Were this the nature of the transaction between the parties, however, the intervention of Lucido in the transfer would be wholly unnecessary. Hence, the fact that he intervened as an interested party is at least some indication that the parties intended something more or different by the document in question than a simple assignment of the rights and obligations of the execution purchasers to a third person.

Any doubt, however, as to the character of this transaction is removed by the agreement entered into between Lucido and calupitan on the same day. In this document it is distinctly stipulated that the right to redeem the property is preserved to Lucido, to be exercised after the expiration of three years. The right to repurchase must necessary imply a former ownership of the property.

Further indication that Calupitan himself considered this transaction as a sale with the right to conventional redemption is to be found in his original answer to the complaint. This original answer was introduced in evidence by the plaintiff over the objection of the defendant. Its admission was proper, especially in view of the fact that it was signed by Calupitan himself, who was the time acting as his own attorney.

Jones on evidence (secs. 272, 273), after remarking that the earlier cases were not in harmony on the point, says:

Many of the cases holding that pleadings inadmissible as admissions were based on the theory that most of the allegations were merely pleader's matter -- fiction stated by counsel and sanctioned by the courts. The whole modern tendency is to reject this view and to treat pleadings as statements of the real issues in the cause and hence as admissions of the parties, having weight according to the circumstances of each case. But some of the authorities still hold that if the pleading is not signed by the party there should be some proof that he has authorized it.

On the same principles where amended pleadings have been filed, allegations in the original pleadings are held admissible, but in such case the original pleadings can have no effect, unless formally offered in evidence.

In this original answer it was expressly stated that the transaction was one of sale with the right to repurchase governed by the provisions of articles 1507 et seq. of the Civil Code.

It further appears from the uncontradicted testimony of the plaintiff that he furnished $20 Mexican of the account necessary to redeem the property from the execution purchasers. It therefore appears beyond dispute that the redemption of the property from the execution purchasers was made by the plaintiff himself by means of a loan furnished by the defendant Calupitan, who took possession of the major portion of the land as his security for its redemption. The ruling of the lower court the transaction between Lucido and Calupitan was one of purchase and sale with the right to redeem was therefore correct.

2. By the terms of his agreement with Calupitan the plaintiff could not exercise his right to redeem the property within three years from March 30, 1903; and the lower court arrived at the date upon which the right to redeem expired by computing five years from March 30, 1906, on the ground that there was no express agreement as to how long the right to repurchase, once available, should continue. Counsel for the appellant admits in his brief that the complaint was filed forty-three days before the expiration of this period. In accordance with our decision in Rosales vs. Reyes and Ordoveza (25 Phil. Rep., 495), we hold that this ruling of the court was correct.

3. The court held that the plaintiff had actually tendered the redemption price to the defendant Calupitan. After an examination of the evidence of record as to this finding of fact, we concur therein. We discussed the legal sufficiency of such tender in the above-cited case of Rosales vs. Reyes and Ordoveza, and held that it was sufficient. This assignment of error must therefore be held to be unfounded.

4. The defendants Oreta and Bueno have no interest in the subject matter of this action. it appears that the defendant Dorado purchased the land from his codefendant Calupitan subsequent to the tender of the redemption price to the latter by the plaintiff. It does not appear that the property was ever registered by any one, nor was the document of sale with the right to repurchase registered by either Calupitan or Lucido. No evidence of the purchase of the land from Calupitan by Dorado is of record with the exception of the oral testimony although it may be taken as established that such a sale actually took place, since all the parties interested agree on this point. Dorado himself testified that he purchased the property with the knowledge that Calupitan had purchased the property from Lucido subject to the right of redemption and insists that he purchased with the knowledge and consent of Lucido. Lucido denies that he was aware of the sale of Dorado until after it had taken place. Upon this state on facts, it is clear that the following provisions of article 1510 of the Civil Code are applicable:

The vendor may bring his action against every possessor whose right arises that of the vendee, even though in the second contract no mention should have been made of the conventional redemption; without prejudice to the provisions of the Mortgage Law with regard to third persons.

The provisions of the Mortgage Law with regard to third persons are clearly not applicable to Dorado. (Manresa, vol., 10, p. 317.)

5. The lower court ordered the redelivery of the land to the plaintiff upon his payment to Calupitan of P1,600, plus the costs entailed in the execution of the document of repurchase. The amount paid to the purchaser at the execution sale for the redemption of the property was $1,720.74 Mexican. Of this amount the plaintiff furnished $120 Mexican, and Calupitan the balance of $1,600.74 Mexican. No amount is fixed in the document of purchase and sale above set forth, but the amount borrowed from Calupitan to redeem the land from the execution sale being thus clearly established no objection can be or is made to the plaintiff's paying this amount. In ordering the payment of this amount to the defendant the lower court failed to reduce it to Philippine currency. On this appeal plaintiff alleges that this amount in Mexican currency exceeds the amount he actually owes to the defendant by about P100, but that rather than spend the time and incur the expense attendant to new trial for the purpose of determining the equivalent of his amount in Philippine currency he is agreeable to pay the defendant P1,600.74 Philippine currency, as the redemption price of the property. In view of this offer and in case it is accepted by the defendant it will be unnecessary to go through formality of a new trial for the purpose of ascertaining the amount of the fact that it is claimed that Calupitan has sold the land in question to his codefendant, Macario Dorado, and it not clearly appearing to whom the plaintiff should pay the P1.600.74, we think this amount should be turned over to the clerk of the Court of First Instance of the Province of Laguna to be held by him until it is determined in the proper manner who is the owner of this amount, Calupitan for Dorado.

For the foregoing reasons, judgment will be entered directing the defendants Calupitan and Dorado to deliver the possession of the land in question to the plaintiff upon the plaintiff's depositing with the clerk of the court the sum of P1,600.74, to be disposed of in the manner above set forth. In all other respects the judgment appealed from is affirmed with costs against the appellants Calupitan and Dorado.

G.R. No. L-37420 July 31, 1984

MACARIA A. TORRES, petitioner, vs.COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO NARCISO, SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, respondents.

G.R. No. L-37421 July 31, 1984

MACARIA A. TORRES, petitioner, vs.COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO, BALDOMERO BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA NARCISO, CESARIO PUNZALAN, TOMAS NARCISO and AMADO NARCISO, respondents.

Juan R. Liwag for petitioner.

Cesar Nocon for respondents.

MELENCIO-HERRERA, J.:

This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment rendered by the then Court of Appeals in the consolidated cases, CA-G.R. NO. 34998-R entitled "Macaria A. Torres, plaintiff-appellee vs. Vicente Santillan, et al., defendants-appellants", and CA-G.R. No. 34999-R entitled "Vicente Santillan, et al., plaintiffs-appellants vs. Macaria A. Bautista, et al., defendants-appellees and the Resolution denying the Motion for Reconsideration and Petition for New Trial, be set aside; and that, instead, The Order of the Court of First Instance of August 7, 1963 be affirmed, or, in the alternative, that the case be remanded to it for new trial.

Involved in this controversy are the respective claims of petitioner and private respondents over Lot No. 551 of the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of approximately 1,622 square meters. covered by Transfer Certificate of Title No. T-6804 issued in the name of the legal heirs of Margarita Torres.

The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish regime, was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died leaving Margarita a widow. Antonina married and had six children, namely: Alfredo, Salud (married to Baldomero Buenaventura), Demetria (married to Leonardo Quinto), Adelina (married to Cesario Punzalan), Tomas and Amado all surnamed Narciso, who, together with Vicente Santillan, are the private respondents. Antonina died before the institution of the cases while Vicente died on June 4, 1957, 2 during the pendency of the cases in the Trial Courts, without progeny .

After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without benefit of marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was born on June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish Priest of Tanza, Cavite, Leon Arvisu Arbole and Margarita Torres were named as father and mother of petitioner whose name was listed as Macaria Arvisu", (Exhibit "C" Another Baptismal Certificate, however, listed her name as Macaria Torres, while her father's name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon Arbole and Margarita Torres were married (Exhibit "A"). Petitioner lived with and was reared by her parents. Margarita, the mother, died on December 20, 1931 (Exhibit "D"), while Leon, the father, passed away on September 14, 1933 (Exhibit " E ").

Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by the Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date of the lease cannot be determined with exactitude from the records. On December 13, 1910, the Government, through the Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the price of P428.80, payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was credited to the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the installments out of his earnings as a water tender at the Bureau of Lands, Tanza, Cavite. The last installment, however, was paid on December 17, 1936, or three (3) years after his death.

On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial deed all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the sum of P300.00. 3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking for the issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau of Lands issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer Certificate of Title No. T-6804 was eventually issued by the Register of Deeds of Cavite on November 7, 1957, also in the name of said heirs.

On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the Justice of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No. 551 without their consent, constructed a house. and refused to vacate upon demand. For her part, petitioner claimed that she is a co-owner of the lot in question, being one of the daughters of Margarita Torres. The ejectment case was decided against petitioner and the latter appealed to the then Court of First Instance of Cavite, where it was docketed as Civil Case No. 5547 (Ejectment Case).

On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal property of the spouses Margarita Torres and Leon Arbole, and that she is their legitimated

child. Private respondents filed an Answer alleging that the lot belonged exclusively to Margarita Torres; that they are her only heirs, and that the complaint for partition should be dismissed.

The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with a finding that Lot No. 551 is the paraphernal property of Margarita Torres and adjudicating to private respondents two-thirds (2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion. 4 Petitioner moved for reconsideration, which private respondents opposed. Pending its resolution, the Provincial Capitol of Cavite was burned, resulting in the complete destruction of the records of the two cases, which, however, were later partially reconstituted.

On August 7, 1963, the then Court of First Instance of Cavite, Branch 1, issued an Order granting reconsideration and amending the Decision of November 20, 1958. The positive portion thereof reads as follows:

Wherefore, judgment is hereby rendered in Civil Case No. .5505:

(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres;

(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and two-sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children and heirs of the deceased Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases. 5

In concluding that petitioner is a legitimated child, the Trial Court opined:

It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon Arbole and Margarita Torres, had the capacity to marry each other. There was no legal impediment for them to marry It has also been established that Macaria A. Torres had been taken care of, brought up and reared by her parents until they died. The certificate of baptism (Exh. "G") also shows that Macaria Torres was given the family name of Arvisu, which is also the family name of her father, Leon Arbole, and that her father is Leon Arvisu and her mother is Margarita Torres. Such being the case, Macaria A. Torres

possessed the status of an acknowledged natural child. And when her parents were married on June 7, 1909, she became the legitimated daughter of on Arbole and Margarita Torres. 6

Private respondents appealed. On April 2, 1973, the then Court of Appeals 7 rendered the judgment sought to be set aside herein, the decretal part of which states:

Wherefore, judgment is hereby rendered in Civil Case No. 5505:

(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres; and

(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and the other half (1/2) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, an surnamed Narciso, legitimate children and heirs of Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases. 8

The Appellate Court was of the opinion that:

Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and Margarita Torres, the former not having been legally acknowledged before or after the marriage of her parents. As correctly pointed out by the appellants in their brief, the fact that she was taken cared of, brought up and reared by her parents until they died, and that the certificate of baptism (Exhibit "C") shows that she was given the family name of Arvisu did not bestow upon her the status of an acknowledged natural child.

Under Article 121 of the old Civil Code, the governing law on the matter, children shall be considered legitimated by subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof, and Article 131 of the same code provides that the acknowledgement of a natural child must be in the record of birth, in a will or in some public document. Article 131 then prescribed the form in which the acknowledgment of a natural child should be made. The certificate of baptism of Macaria A. Torres (Exhibit "C") is not the record of birth referred to in Article 131. This

article of the old Civil Code 'requires that unless the acknowledgement is made in a will or other public document, it must be made in the record of birth, or in other words, in the civil register (Samson vs. Corrales Tan, 48 PhiL 406). 9

A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930, of spouses Leon Arvisu (Arbole) and Margarita Torres, 10 reading in full as follows:

SWORN STATEMENT

We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and residents of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to according to law depose and say

That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26 th of June 1898 all Tanza, Cavite, but as stated she was legitimized by our subsequent marriage.

That at the time of her birth or conception, we, her parents could have married without dispensation had we desired.

That as natural child our aforesaid daughter was surnamed de Torres after that of her mother's at the time she was baptized as per record on file in the Church.

That as a legitimized daughter she should now be surnamed Arvisu after her father's family name.

Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for the change of the surname of said Macaria de Torres as desired.

In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March 1930.

(Thumbmarked) (Thumbmarked)LEON ARVISU MARGARITA TORRES

Signed in the prsence of:

(Sgd.) Illegible (Sgd.) Macaria Bautista

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

UNITED STATES OF AMERICA )PHILIPPINE ISLANDS )MUNICIPALITY OF TANZA ) ssPROVINCE OF CAVITE )

Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu exhibited to me no cedula certificate being exempt on account of going over 60 years of age and Margarita Torres having exhibited no cedula certificate being exempt on account of her sex.

Witness my hand and seal of office on the date and place aforesaid.

CONSTANCIO T. VELASCO Notary Public, Cavite ProvinceUntil Dec. 31, 1930.

Not. Reg. No. 56 P. No. 2Book No. III Series of 1930. 11

The reason given for the non-production of the notarial document during trial was that the same was only found by petitioner's daughter, Nemensia A. Bautista, among the personal belongings of private respondent, Vicente Santillan, an adverse party, after his death and who may have attempted to suppress it. Private respondents, for their part, argued against new trial, and contended that it is not newly discovered evidence which could not have been produced during the trial by the exercise of due diligence.

The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus Y. Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New Trial was considered, there was disagreement, possibly as to whether or not new trial should be granted in respect of the sworn statement of March 5, 1930. A Special Division of five was then formed, composed of Justices Antonio Lucero Magno S. Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having retired or having disqualified himself). In a minute resolution of August 24, 1973, the Division of five, by a vote of three or two, denied both reconsideration and new trial.

To warrant review, petitioner, has summarized her submission based on two assignments of error. The first was expressed as follows:

Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to include in its findings of facts the admission made by Vicente Santillan and the heirs of Antonina Santillan (herein respondents) that Macaria A. Torres and Vicente Santillan and Antonina Santillan are brother and sisters with a common mother Margarita Torres and they are the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof, the Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of Antonina Santillan. (emphasis supplied)

As we understand it, petitioner has conceded, with which we concur, that, without taking account of the sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous possession of the status of a natural child, fact of delivery by the mother, etc. will not amount to automatic recognition, but an action for compulsory recognition is still necessary, which action may be commenced only during the lifetime of the putative parents, subject to certain exceptions. 12

The admission adverted to appears in paragraph 3 of private respondents' original complaint in the Ejectment Case reading:

the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of Margarita Torres, who died in Tanza, Cavite on December 20, 1931. (Emphasis supplied).

The statement, according to petitioner, is an admission of her legitimation and is controlling in the determination of her participation in the disputed property.

We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case, the underlined portion was deleted so that the statement simply read:

That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza, Cavite, on December 20, 1931.

In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as abandoned and ceases to perform any further function as a pleading. The original complaint no longer forms part of the record. 13

If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer. Contrary to petitioner's submission, therefore there can be no estoppel by extrajudicial admission made in the original complaint, for failure to offer it in evidence. 14

It should be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the legitimacy of petitioner.

The second error attributed to the Appellate Court has been pleaded as follows:

Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new trial, knowing as it does that the judgment is clearly erroneous in view of the evidence which is offered and no amount of diligence on the part of the petitioner could it be produced in court at any time before it was offered as it was found from the personal belongings of Vicente Santillan, an adverse party, after his death.

It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice. Assuming that the genuineness and due execution of the Sworn Statement of March 5, 1930 is established in accordance with procedural due process, a new trial would resolve such vital considerations as (1) whether or not said Sworn Statement qualifies as the public document prescribed in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to an act of acknowledgment by the parents after the celebration of their marriage as required by Article 121 of the same code; 16 and (3) whether or not petitioner's signature as a witness to said document was the equivalent of the consent necessary for acknowledgment of an adult person under Article 133 of that Code. 17 Affirmative answers would confer upon petitioner the status of a legitimated child of her parents, and would entitle her to enjoy hereditary rights to her mother's estate.

Private respondents stress that since petitioner signed as a witness to the document she should be chargeable with knowledge of its existence, and, therefore, the Sworn Statement was not newly discovered evidence. In our view, the document can reasonably qualify as newly discovered evidence, which could not have been produced during the trial even with the exercise of due diligence; specially if it really had been in the possession of Vicente Santillan, an adverse party who, it was alleged, suppressed the document.

In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court, now empowered to do so under Section 9 of Batas Pambansa Blg. 129.

WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial, and depending on its outcome, said Court shall also resolve the respective participation of the parties in the disputed property, inclusive of the estate of the deceased Vicente Santillan. No costs.

SO ORDERED.

[G.R. No. 108028. July 30, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISTINA M. HERNANDEZ, accused-appellant.D E C I S I O N

FRANCISCO, J.:

Accused-appellant Cristina Hernandez was charged with the crime of illegal recruitment committed in large scale in violation of Article 38 (a) and (b) in relation to Article 13 (b) and (c) of the New Labor Code,[1] committed as follows:

"That in or about and during the period comprised between December 14, 1988 to December 24, 1988, inclusive in the City of Manila, Philippines, the said accused representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully for a fee, recruit and promise employment/job placement abroad to the following persons to wit: ROGELIO N. LEGASPI, ULDARICO P. LEGASPI, SONNY P. BERNABE, ARNEL B. MENDOZA, BENITO L. BERNABE, ARNOLD P. VALENZUELA, ARMANDO P. PAGULAYAN, GREGORIO P. MENDOZA, JR., RONALD T. CORREA, DANILO PALAD and ROBERT P. VELASQUEZ (hereinafter known as private complainants) without first having secured the required license or authority from the POEA."[2] (underscoring supplied.)

Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. Of the fourteen (14) private complainants, four (4) were presented as witnesses for the prosecution, namely: Benito L. Bernabe, Robert P. Velasquez, Gregorio P. Mendoza and Arnel Mendoza. They testified to the following essential facts: Private complainants' first encounter with the appellant was on December 12, 1988 when one Josefa Cinco accompanied them to the office of the Philippine Thai Association, Inc. (Philippine-Thai) in Ermita, Manila to meet the appellant. Introducing herself as the general manager of Philippine-Thai, appellant asserted that her company recruited workers for placement abroad and asked private complainants if they wanted to work as factory workers in Taipeh. Enticed by the assurance of immediate employment and an $800 per month salary, private complainants applied. Appellant required private complainants to pay placement and passport fees in the total amount of P22,500.00 per applicant, to be paid in three installments, to wit: P1,500 on December 14, 1988, P10,000.00 on December 16, 1988, and P11,000.00 on December 22, 1988. When the complainants-witnesses paid the first two installments, they were issued receipts by Liza Mendoza, the alleged treasurer of Philippine-Thai signed by the latter in the presence of the appellant. The receipts for the last installment paid by them were signed by Liza Mendoza, and the appellant. After having received the entire amount[3] from the witnesses, appellant assured them that they would be able to leave for Taipeh sometime before the end of December, 1988. But contrary to appellant's promise, complainants-witnesses were unable to leave for abroad. They demanded for the return of their money but to no avail. Appellant's unfulfilled promise of employment and her refusal to return the money that had been paid by way of placement and passport fees, triggered the filing of the complaint.

For its part, the defense presented as its lone witness, the appellant whose testimony consisted mainly in denying the charges against her. Appellant claimed that she never met any of the complainants nor did she ever recruit any of them. She likewise denied having received money from anyone and asserted that she did not know any Liza Mendoza who is the alleged treasurer of Philippine-Thai. Appellant maintained that although she had an office in Ermita

Building located at Arquiza Street, Ermita, Manila, the said office belonged to B.C. Island Wood Products Corporation which was engaged in the logging business. However, when questioned further, appellant admitted being the president of Philippine-Thai but only in a nominal capacity, and claimed that as nominee-president, she did not participate in any of its transactions. Appellant likewise insisted that Philippine-Thai was engaged solely in the barong tagalog business.

After careful calibration of the evidence presented by the prosecution and the defense, the court a quo rendered a decision holding that the defense of "denial" interposed by the accused could not prevail over the positive and clear testimonies of the prosecution witnesses which had established the guilt of the accused beyond reasonable doubt.[4] The dispositive portion of the decision reads:

"WHEREFORE, premises considered, this Court hereby finds that the accused CRISTINA HERNANDEZ, (sic) guilty beyond reasonable doubt of the crime of illegal recruitment, committed in large scale, as defined in Article 38(a) & (b) of Presidential Decree No. 1412, x x x in relation to Article 13 (b) and (c) x x x, accordingly, sentences the accused to suffer the penalty of life imprisonment (RECLUSION PERPETUA) with the accessory penalties provided for by law; to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND AND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND AND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs.

SO ORDERED.

Manila, Philippines, November 29, 1991."[5]

Appellant comes to this Court for the reversal of the judgment of conviction assigning the following errors against the lower court:

I

THE TRIAL COURT ERRED IN FINDING THE ACCUSED "LIABLE OF (sic) ILLEGAL RECRUITMENT COMMITTED IN A LARGE SCALE AND BY A SYNDICATED (sic)" FOR HAVING "MAINTAINED OFFICE WITHOUT LICENSE OR REGISTRATION FROM THE DEPARTMENT OF LABOR, THRU ITS OFFICE, THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA)."

II

THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF THE "FACT THAT ACCUSED CRISTINA M. HERNANDEZ HAD BEEN CHARGED x x x OF ANOTHER

ILLEGAL RECRUITMENT x x x DOCKETED AS CRIMINAL CASE NO. 88-62599" AND IN CONSIDERING THE PENDENCY THEREOF AS EVIDENCE OF THE "SCHEME AND STRATEGY ADOPTED BY THE ACCUSED x x x AND PRACTICED WITH THE HELP OF HER AGENTS AND OTHER PERSONS WORKING UNDER THE SHADE OF HER PROTECTION."

III

THE TRIAL COURT ERRED IN NOT GIVING CREDENCE OR WEIGHT TO THE DEFENSE OF THE ACCUSED.[6]

The first assignment of error is anchored on the contention that the prosecution failed to prove one of the essential elements of the crime of illegal recruitment -- that the offender is a non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of workers.[7] The aforementioned element, specifically the fact that neither appellant nor Philippine-Thai was licensed or authorized to recruit workers as shown by the records of the POEA, was the subject of a stipulation proposed by the prosecution and admitted by the defense during trial. Appellant assails as erroneous the reliance placed by the prosecution on the said stipulation of facts in dispensing with the presentation of evidence to prove the said element of the crime of illegal recruitment. Appellant argues that: (1) the stipulation of facts was not tantamount to an admission by the appellant of the fact of non-possession of the requisite authority or license from the POEA, but was merely an admission that the Chief Licensing Officer of the POEA, if presented in court, would testify to this fact, and (2) the stipulation of facts is null and void for being contrary to law and public policy. Appellant posits the foregoing arguments to bolster her contention that the stipulation of facts did not relieve the prosecution of its duty to present evidence to prove all the elements of the crime charged to the end that the guilt of the accused may be proven beyond reasonable doubt.

At the outset, it should be said that the above contention and the arguments are insignificant in view of the fact that records disclose that the prosecution had in fact presented evidence to prove the said element of the crime of illegal recruitment. "EXHIBIT I", a certification issued by the Chief Licensing Branch of the POEA, attesting to the fact that neither appellant nor Philippine-Thai is licensed/authorized to recruit workers for employment abroad, was offered and admitted in evidence without the objection of the appellant.[8]

Although appellant's arguments find no significant bearing in the face of the existence of "EXHIBIT I", they nonetheless require deeper scrutiny and a clear response for future application. Hence, the following discussion.

Appellant correctly distinguishes between an admission that a particular witness if presented in court would testify to certain facts, and an admission of the facts themselves. According to the appellant, what was stipulated on between the prosecution and defense counsel at the hearing on June 6, 1990 was "merely that the testimony of the Chief Licensing Officer of the POEA would be to the effect that appellant is not licensed nor authorized to recruit workers",[9] Thus:

"Prosecutor

x x x Before we call on our first witness, we propose some stipulations regarding the testimony of the Chief Licensing Branch of the POEA — that Cristina Hernandez is not a (sic) licensed nor authorized by the Department of Labor to recruit workers abroad.

Court

Would you agree?

Atty. Ulep (Counsel for the Accused): Agreed, Your Honor."[10]

She claims that the foregoing clearly indicate that there was no judicial admission of the fact of non-possession of a license/authority but rather a mere admission that the witness, if presented, would testify to such fact. This being the case, it remained incumbent upon the prosecution to present evidence of such fact. To buttress her position, the following was cited to note the distinction:

"Suppose a case is set for trial and one of the parties moves for a continuance because of the absence of W, an important witness. His opponent, who is anxious to go to trial; asks what are the facts to which W would testify. The other attorney tells him, adding: 'If I consent to the overruling of my motion, will you stipulate that those are the facts?' The attorney who is pressing for trial says: 'No but I will stipulate that if W were called in this case as a witness, he would so testify.' What is the difference between the two stipulations?

In the first stipulation proposed there is a judicial admission of the facts, and they cannot be contradicted. But the second stipulation proposed will only have the same effect as if the witness had testified to the facts. Such testimony the party is free to contradict."[11]

The distinction, though cogent, is unfortunately inapplicable to the case at bar. Conveniently omitted from the appellant's reply brief is the ensuing statement made by the court after counsel for the accused, Atty. Ulep agreed to the stipulation proposed by the prosecution, to wit:

Atty. Ulep (counsel for the accused): Agreed, Your Honor.

Court

The prosecution and the defense agreed to stipulate/admit that from the record of the POEA Licensing and Regulation Office, Dept. of Labor and Employment, accused Cristina Hernandez/Phil. etc., Ass. x x x is neither licensed nor authorized by that office to recruit workers overseas abroad and that if the duly authorized representative from the POEA Administration is to take the witness stand, he will confirm to this fact as borne by the records.[12] (Underscoring supplied .)

From the foregoing, it is evident that the prosecution and the defense counsel stipulated on two things: that "x x x from the record of the POEA, x x x accused Cristina Hernandez, Phil. etc. Ass. x x x is neither licensed nor authorized by that office to recruit workers for overseas abroad and that if the duly authorized representative from the POEA Administratin (sic) is to take the witness stand, he will confirm to this fact x x x."[13]The claim that the lower court mistakenly interpreted defense counsel's acquiescence to the prosecution's proposed stipulation as an admission of non-possession of the requisite POEA license or authority is belied by the fact that after the above enunciation by the court, no objection was interposed by defense counsel.

Appellant further contends that granting arguendo that defense counsel had in fact agreed to the above stipulation of facts, the same is null and void for being contrary to the well-established rule that a stipulation of facts is not allowed in criminal cases. To bolster this contention, appellant cited the consistent ruling of this Court on the matter. Thus, as held in the case of U.S. vs. Donato:[14]

"Agreements between attorneys for the prosecution and for the defense in criminal cases, by which it is stipulated that certain witnesses, if present, would testify to certain facts prevent a review of the evidence by the Supreme Court and are in violation of the law."[15]

The above ruling was reiterated in a subsequent case where the accused was convicted solely on the basis of an agreement between the fiscal and the counsel for the accused that certain witnesses would testify confirming the complaint in all its parts. In reversing the judgment of conviction, this Court held that:

"It is neither proper nor permissible to consider a case closed, or to render judgment therein, by virtue of an agreement entered into between the provincial fiscal and the counsel for the accused with reference to facts, some of which are favorable to the defense, and others related to the prosecution, without any evidence being adduced or testimony taken from the witnesses mentioned in the agreement; such practice is not authorized and defeats the purposes of criminal law; it is an open violation of the rules of criminal procedure x x x."[16]

The rule prohibiting the stipulation of facts in criminal cases is grounded on the fundamental right of the accused to be presumed innocent until proven guilty, and the corollary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. It is therefore advanced that the prosecution being duty-bound to prove all the elements of the crime, may not be relieved of this obligation by the mere expedient of stipulating with defense counsel on a matter constitutive of an essential element of the crime charged.

The rationale behind the proscription against this class of agreements between prosecution and defense was enunciated in the case of U.S. vs. Manlimos:[17]

"It is not supposed to be within the knowledge or competence of counsel to predict what a proposed witness shall say under the sanction of his oath and the

test of cross-examination. A conviction for crime should not rest upon mere conjecture. Nor is it possible for a trial court to weigh with exact nicety the contradictory declaration of witnesses not produced so as to be subjected to its observation and its judgment as to their credibility."[18]

However, in the light of recent changes in our rules on criminal procedure, particularly the pre-trial provisions found in Rule 118, the prohibition against a stipulation of facts in criminal cases no longer holds true. Rule 118 provides the following:

"Section 1. Pre-trial; when proper — To expedite trial, where the accused and counsel agree, the court shall conduct a pre-trial conference on the matters enunciated in Section 2 hereof, without impairing the rights of the accused.

Sec. 2 Pre-trial conference; subjects x x x The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

By virtue of the foregoing rule, a stipulation of facts in criminal cases is now expressly sanctioned by law. In further pursuit of the objective of expediting trial by dispensing with the presentation of evidence on matters that the accused is willing to admit, a stipulation of facts should be allowed not only during pre-trial but also and with more reason, during trial proper itself. Parenthetically, although not expressly sanctioned under the old rules of court, a stipulation of facts by the parties in criminal cases has long been allowed and recognized as declarations constituting judicial admissions, hence, binding upon the parties. In the case of People vs. Mapa[19] where the accused was charged with illegal possession of firearms, the prosecution and the defense stipulated on the fact that the accused was found in possession of a gun without the requisite permit or license. More at point is the case of People vs. Bocar[20] wherein the fiscal proposed the admission by the accused of the affidavits and other exhibits already presented by the prosecution to dispense with oral testimonies on the matter. Holding that the admissions made by the parties were binding, this Court stated that:

"x x x [T]here is nothing unlawful or irregular about the above procedure. The declarations constitute judicial admissions, which are binding on the parties, by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statements contained in the exhibits."[21] (underscoring supplied .)

American jurisprudence has established the acceptability of the practice of stipulating during the trial of criminal cases, and categorically stated in People vs. Hare[22] that:

"That record discloses that the defense counsel stipulated to what certain witnesses would testify if they were present in court. x x x

x x x The defendant contends that it was error for his counsel to make these stipulations. This court has held that an accused may by stipulation waive the necessity of proof of all or any part of the case which the people have alleged against him and that having done so, he cannot complain in this Court of evidence which he has stipulated into the record.[23]

The corollary issue left for the determination of this Court is whether or not Section 4 of Rule 118 -- requiring an agreement or admission made or entered during the pre-trial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused -- equally applies to a stipulation of facts made during trial. We resolved this issue in the negative.

A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: "x x x an attorney who is employed to manage a party's conduct of a lawsuit x x x has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, x x x which unless allowed to be withdrawn are conclusive."[24] (underscoring supplied.) In fact, "judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made x x x for the purpose of dispensing with proof of some fact, x x x they bind the client, whether made during, or even after, the trial."[25]

The foregoing find basis in the general rule that a client is bound by the acts of his counsel who represents him.[26] For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client. The rule extends even to the mistakes and negligence committed by the lawyer except only when such mistakes would result in serious injustice to the client.[27] No cogent reason exists to make such exception in this case. It is worth noting that Atty. Ulep, appellant's counsel in the lower court, agreed to the stipulation of facts proposed by the prosecution not out of mistake nor inadvertence, but obviously because the said stipulation of facts was also in conformity to defense's theory of the case. It may be recalled that throughout the entire duration of the trial, appellant staunchly denied ever having engaged in the recruitment business either in her personal capacity or through Philippine-Thai. Therefore, it was but logical to admit that the POEA records show that neither she nor Philippine-Thai was licensed or authorized to recruit workers.

It is true that the rights of an accused during trial are given paramount importance in our laws on criminal procedure. Among the fundamental rights of the accused is the right to confront and cross-examine the witnesses against him.[28] But the right of confrontation guaranteed and secured to the accused is a personal privilege which may be waived.[29] Thus, in the case of U.S. vs. Anastasio,[30] this Court deemed as a waiver of the right of confrontation, the admission by the accused that witnesses if present would testify to certain facts stated in the affidavit of the prosecution.[31]

In the same vein, it may be said that such an admission is a waiver of the right of an accused to present evidence on his behalf. Although the right to present evidence is guaranteed by no less than the Constitution itself for the protection of the accused, this right may be waived expressly or impliedly.[32] This is in consonance with the doctrine of waiver which recognizes that "x x x everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large."[33]

The abovementioned doctrine is squarely applicable to the case at bar. Appellant was never prevented from presenting evidence contrary to the stipulation of facts. If appellant believed that the testimony of the Chief Licensing Officer of the POEA would be beneficial to her case, then it is the defense who should have presented him. Her continuous failure to do so during trial was a waiver of her right to present the pertinent evidence to contradict the stipulation of facts and establish her defense.

In view of the foregoing, the stipulation of facts proposed during trial by prosecution and admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts stipulated on. Controlling, therefore, is Section 4, Rule 129 of the Rules of Court which provides that:

"An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made."

We now go to appellant's second and third assignment of errors. In her second assignment of error, appellant makes much ado of the "judicial notice" taken by the lower court of the fact that appellant had been charged with another illegal recruitment case,[34] and in considering the pendency thereof as evidence of the scheme and strategy adopted by the accused. Appellant cites a violation of Section 3 of Rule 129 of the Rules of Court which provides that before the court may take judicial notice of any matter, the parties shall be heard thereon if such matter is decisive of a material issue in the case. It is claimed that the lower court never announced its intention to take judicial notice of the pendency of the other illegal recruitment case nor did it allow the accused to be heard thereon.

It is true that as a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge.[35] However, this rule is subject to the exception that:

"x x x in the absence of objection and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of the case filed in its archives as read into the records of a case pending before it, when with

the knowledge of the opposing party, reference is made to it, by name and number or in some other manner by which it is sufficiently designated, x x x"[36] (underscoring supplied .)

The judicial notice taken by the lower court of the pendency of another illegal recruitment case against the appellant falls squarely under the above exception in view of the fact that it was the appellant herself who introduced evidence on the matter when she testified in open court as follows:

"Q: You mean to say . . . by the way, where (sic) were you at the NBI when Mrs. Cinco inquired from you about placement abroad?

A: I was just invited by the personnel of the NBI and I was not allowed to go home.

Q: Why were you invited by the NBI?

A: They told me that there was a complaint against me.

Q: Complaint about what?

A: The same case.

Q: You mean illegal recruitment also?

A: Yes, sir.

Q: You made mention than an illegal recruitment case which was supposed to be the cause of your detention at the NBI. . . .

I am not referring to this case, Mrs. Hernandez -- what happened to that case, what is the status of that case?

A: It is also in this sala.

COURT: It is already submitted for decision.[37]

Even assuming, however, that the lower court improperly took judicial notice of the pendency of another illegal recruitment case against the appellant, the error would not be fatal to the prosecution's cause. The judgment of conviction was not based on the existence of another illegal recruitment case filed against appellant by a different group of complainants, but on the overwhelming evidence against her in the instant case.

Anent the last assignment of error, suffice it to say that we do not find any compelling reason to reverse the findings of the lower court that appellant's bare denials cannot overthrow the positive testimonies of the prosecution witnesses against her.

Well established is the rule that denials if unsubstantiated by clear and convincing evidence are negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses who testify on affirmative matters.[38] That she did not merely deny, but likewise raised as an affirmative defense her appointment as mere nominee-president of Philippine-Thai is a futile attempt at exculpating herself and is of no consequence whatsoever when weighed against the positive declarations of witnesses that it was the appellant who executed the acts of illegal recruitment as complained of.

Finally, under Article 39 of the New Labor Code, the penalty for illegal recruitment committed in large scale is life imprisonment and a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00). As previously held by this Court, life imprisonment is not synonymous with reclusion perpetua.[39] The lower court erred in imposing "the penalty of life imprisonment (reclusion perpetua) with the accessory penalties provided for by law; x x x"[40] (Underscoring supplied)

WHEREFORE, appellant's conviction of the crime of illegal recruitment in large scale is hereby AFFIRMED, and the penalty imposed MODIFIED as follows: the court sentences the accused to suffer the penalty of life imprisonment and to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs.

SO ORDERED.

Y6