Azcuna Digests

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Digests of Selected 2006-2007 Azcuna DecisionsPOLITICAL LAWBAYAN, KARAPATAN, Kilusang Magbubukid ng Pilipinas(KMP), GABRIELA, et. al. v. EDUARDO ERMITA, et. al.GR No. 169838, 25 April 2006FACTS:

All petitioners assail Batas Pambansa No. 8801, some of them intotoand others only Sections 4, 5, 6, 12, 13(a), and 14(a), aswell as the policy of CPR. They seek to stop violent dispersalsof rallies under the no permit, no rally policy and the CPRpolicy recently announced.

CPR, on the other hand, is a policy set forth in a press releaseby Malacaang dated September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDOERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credibleplans of anti-government groups to inflame thepolitical situation, sow disorder and incite peopleagainst the duty constituted authorities, we haveinstructed the PNP as well as the local governmentunits to strictly enforce a no permit, no rally policy,disperse groups that run afoul of this standard andarrest all persons violating the laws of the land as wellas ordinances on the proper conduct of mass actionsand demonstrations.

The rule of calibrated preemptive response is now inforce, in lieu of maximum tolerance. The authoritieswill not stand aside while those with ill intent are

herding a witting or unwitting mass of people andinciting them into actions that are inimical to publicorder, and the peace of mind of the nationalcommunity.

Unlawful mass actions will be dispersed. The majorityof law-abiding citizens have the right to be protectedby a vigilant and proactive government.

ISSUES:1. On the constitutionality of Batas Pambansa No.

880, specifically Sections 4, 5, 6, 12 13(a) and14(a) thereof:

(a) Are these content-neutral or content-

based regulations? Do they violateinternational human rights treaties andthe Universal Declaration of HumanRights? NO

SEC. 4 of the Consitution. No law shall be passed abridging thefreedom of speech, of expression, or of the press, or the right ofthe people peaceably to assemble and petition the governmentfor redress of grievances.

1For the complete text of BP 880, pls see end of this digest.

The first point to mark is that the right to peaceably assembleand petition for redress of grievances is, together with freedomof speech, of expression, and of the press, a right that enjoysprimacy in the realm of constitutional protection. For theserights constitute the very basis of a functional democratic polity,without which all the other rights would be meaningless andunprotected.

In Jacinto v CA, the Court said: It is rather to be expected that

more or less disorder will mark the public assembly of thepeople to protest against grievances whether real or imaginary,because on such occasions feeling is always wrought to a highpitch of excitement, and the greater, the grievance and themore intense the feeling, the less perfect, as a rule will be thedisciplinary control of the leaders over their irresponsiblefollowers. But if the prosecution be permitted to seize uponevery instance of such disorderly conduct by individual membersof a crowd as an excuse to characterize the assembly as aseditious and tumultuous rising against the authorities, then theright to assemble and to petition for redress of grievances wouldexpose all those who took part therein to the severest and mostunmerited punishment, if the purposes which they sought toattain did not happen to be pleasing to the prosecuting

authorities. If instances of disorderly conduct occur on suchoccasions, the guilty individuals should be sought out andpunished therefor, but the utmost discretion must be exercisedin drawing the line between disorderly and seditious conductand between an essentially peaceable assembly and atumultuous uprising.

In Primicias v Fugoso, the Court said: The exercise of thoserights is not absolute for it may be so regulated that it shall notbe injurious to the equal enjoyment of others having equalrights, nor injurious to the rights of the community or society.The power to regulate the exercise of such and otherconstitutional rights is termed the sovereign police power,which is the power to prescribe regulations, to promote the

health, morals, peace, education, good order or safety, andgeneral welfare of the people. This sovereign police power isexercised by the government through its legislative branch bythe enactment of laws regulating those and other constitutionaland civil rights, and it may be delegated to political subdivisions,such as towns, municipalities and cities by authorizing theirlegislative bodies called municipal and city councils enactordinances for purpose.

In Reyes v. Bagatsing: It is entitled to be accorded the utmostdeference and respect. It is not to be limited, much lessdenied, except on a showing, as is the case with freedom ofexpression, of a clear and present danger of a substantive evilthat the state has a right to prevent. The applicants for a

permit to hold an assembly should inform the licensing authorityof the date, the public place where and the time whenit willtake place. If it were a private place, only the consent of theowner or the one entitled to its legal possession is required.Such application should be filed well ahead in time to enable thepublic official concerned to appraise whether there may be validobjections to the grant of the permit or to its grant but atanother public place. It is an indispensable condition to suchrefusal or modification that the clear and present danger test bethe standard for the decision reached. If he is of the view thatthere is such an imminent and grave danger of a substantiveevil, the applicants must be heard on the matter. Thereafter,his decision, whether favorable or adverse, must be transmitted

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Digests of Selected 2006-2007 Azcuna Decisionsto them at the earliest opportunity. Thus if so minded, they canhave recourse to the proper judicial authority.

B.P. No. 880 was enacted after this Court rendered its decisionin Reyes. The provisions of B.P. No. 880 practicallycodify the ruling in Reye s .It is very clear, therefore, that B.P. No. 880 is not an absoluteban of public assemblies but a restriction that simply regulates

the time, place and manner of the assemblies. It is a content-neutral regulation of the time, place, and manner of holdingpublic assemblies. A fair and impartial reading of B.P. No. 880thus readily shows that it refers to al l kinds of public assembliesthat would use public places. The reference to lawful causedoes not make it content-based because assemblies really haveto be for lawful causes, otherwise they would not be

peaceable and entitled to protection. Neither are the wordsopinion, protesting and influencing in the definition ofpublic assembly content based, since they can refer to anysubject. The words petitioning the government for redress ofgrievances come from the wording of the Constitution, so itsuse cannot be avoided. Finally, maximum tolerance is for theprotection and benefit of all rallyists and is independent of the

content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground ofclear and present danger to public order, public safety, publicconvenience, public morals or public health. This is arecognized exception to the exercise of the right even under theUniversal Declaration of Human Rights and the InternationalCovenant on Civil and Political Rights.

(b) Are they void on grounds of overbreadthor vagueness?

Contrary to petitioners claim, the law is very clear and isnowhere vague in its provisions. Public does not have to be

defined. Its ordinary meaning is well-known. WebstersDictionary defines it as an organized body of people; a groupof people distinguished by common interests orcharacteristics.

Not every expression of opinion is a public assembly. The lawrefers to rally, demonstration, march, parade, procession orany other form of mass or concerted action held in a publicplace. So it does not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of theright to peaceful assembly and petition only to the extentneeded to avoid a clear and present danger of the substantiveevils Congress has the right to prevent.

(c) Do they constitute prior restraint?

There is, likewise, no prior restraint, since the content of thespeech is not relevant to the regulation. [That is all the Courtsaid regarding this issue.]

(d) Are they undue delegations of powers toMayors?

As to the delegation of powers to the mayor, the law provides aprecise and sufficient standard the clear and present dangertest stated in Sec. 6(a). The reference to imminent and grave

danger of a substantive evil in Sec. 6(c) substantially meansthe same thing and is not an inconsistent standard.

Finally, for those who cannot wait, Section 15 of the lawprovides for an alternative forum through the creation offreedom parks where no prior permit is needed for peacefulassembly and petition at any time. [Please refer to the text ofBP 880 at the end of this digest.]

The Solicitor General stated during the oral arguments that, tohis knowledge, only Cebu City has declared a freedom park Fuente Osmea.That of Manila, the Sunken Gardens, has since been convertedinto a golf course, he added.

If this is so, the degree of observance of B.P. No. 880smandate that every city and municipality set aside a freedompark within six months from its effectivity in 1985, or 20 yearsago, would be pathetic and regrettable. The matter appears tohave been taken for granted amidst the swell of freedom thatrose from the peaceful revolution of 1986.

Considering that the existence of such freedom parksis an essential part of the laws system of regulationof the peoples exercise of their right to peacefullyassemble and petition, the Court is constrained torule that after thirty (30) days from the finality ofthis Decision, no prior permit may be required for theexercise of such right in any public park or plaza of acity or municipality until that city or municipality shallhave complied with Section 15 of the law. Forwithout such alternative forum, to deny the permitwould in effect be to deny the right. Advance noticesshould, however, be given to the authorities to ensureproper coordination and orderly proceedings.

2. On the constitutionality and legality of the policy

of Calibrated Preemptive Response (CPR):

The Solicitor General has conceded that the use of the termshould now be discontinued, since it does not mean anythingother than the maximum tolerance policy set forth in B.P. No.880.

The Court rules that in view of the maximum tolerancemandated by B.P. No. 880, CPR serves no valid purpose if itmeans the same thing as maximum tolerance, and is illegal if itmeans something else. Accordingly, what is to be followed isand should be that mandated by the law itself, namely,maximum tolerance under BP 880.

There is need to address the situation adverted to by petitionerswhere mayors do not act on applications f or a permitand when the police demand a permit and the rallyistscould not produce one, the rally is immediately dispersed.In such a situation, as a necessary consequence and part ofmaximum tolerance, rallyists who can show the police anapplication duly filed on a given date can, after two days fromsaid date, rally in accordance with their application without theneed to show a permit, the grant of the permit being thenpresumed under the law, and it will be the burden of theauthorities to show that there has been a denial of theapplication, in which case the rally may be peacefully dispersed

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Digests of Selected 2006-2007 Azcuna Decisionsfollowing the procedure of maximum tolerance prescribed bythe law.

SUMMARY:In cases involving liberty, the scales of justice should weighheavily against the government and in favor of the poor, theoppressed, the marginalized, the dispossessed and the weak.Indeed, laws and actions that restrict fundamental rights come

to the courts with a heavy presumption against their validity.These laws and actions are subjected to heightened scrutiny.For this reason, the so-called calibrated preemptive responsepolicy has no place in our legal firmament and must be struckdown as a darkness that shrouds freedom. It merely confusesour people and is used by some police agents to justify abuses.On the other hand, B.P. No. 880 cannot be condemned asunconstitutional; it does not curtail or unduly restrict freedoms;it merely regulates the use of public places as to the time, placeand manner of assemblies. Far from being insidious, maximumtolerance is for the benefit of rallyists, not the government.The delegation to the mayors of the power to issue rally

permits is valid because it is subject to the constitutionally-

sound clear and present danger standard.

In this Decision, the Court goes even one step further insafeguarding liberty by giving local governments a deadline of30 days within which to designate specific freedom parks asprovided under B.P. No. 880. If, after that period, no suchparks are so identified in accordance with Section 15 of the law,allpublic parks and plazas of the municipality or city concernedshall in effect be deemed freedom parks; no prior permit ofwhatever kind shall be required to hold an assembly therein.The only requirement will be written notices to the police andthe mayors office to allow proper coordination and orderlyactivities.

Batas Pambansa Blg. 880AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OFTHEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THEGOVERNMENT [AND] FOR OTHER PURPOSES

Be it enacted by the Batasang Pambansa in sessionassembled:

SECTION 1. Title. This Act shall be known as The PublicAssembly Act of 1985.

SEC. 2. Declaration of policy. The constitutional right of thepeople peaceably to assemble and petition the government

for redress of grievances is essential and vital to the strengthand stability of the State. To this end, the State shall ensurethe free exercise of such right without prejudice to the rightsof others to life, liberty and equal protection of the law.

SEC. 3. Definition of terms. For purposes of this Act:

(a) Public assembly means any rally, demonstration,march, parade, procession or any other form of mass orconcerted action held in a public place for the purpose ofpresenting a lawful cause; or expressing an opinion to thegeneral public on any particular issue; or protesting orinfluencing any state of affairs whether political, economic or

social; or petitioning the government for redress ofgrievances.

The processions, rallies, parades, demonstrations, publicmeetings and assemblages for religious purposes shall begoverned by local ordinances; Provided, however, That thedeclaration of policy as provided in Section 2 of this Act shallbe faithfully observed.

The definition herein contained shall not include picketing andother concerted action in strike areas by workers andemployees resulting from a labor dispute as defined by theLabor Code, its implementing rules and regulations, and bythe Batas Pambansa Bilang 227.

(b) Public place shall include any highway, boulevard,avenue, road, street, bridge or other thoroughfare, park,plaza square, and/or any open space of public ownershipwhere the people are allowed access.

(c) Maximum tolerance means the highest degree ofrestraint that the military, police and other peace keepingauthorities shall observe during a public assembly or in the

dispersal of the same.

(d) Modification of a permit shall include the change ofthe place and time of the public assembly, rerouting of theparade or street march, the volume of loud-speakers or soundsystem and similar changes.

SEC. 4. Permit when required and when not required.-- Awritten permit shall be required for any person or persons toorganize and hold a public assembly in a public place.However, no permit shall be required if the public assemblyshall be done or made in a freedom park duly established bylaw or ordinance or in private property, in which case only theconsent of the owner or the one entitled to its legal

possession is required, or in the campus of a government-owned and operated educational institution which shall besubject to the rules and regulations of said educationalinstitution. Political meetings or rallies held during anyelection campaign period as provided for by law are notcovered by this Act.

SEC. 5. Application requirements.-- All applications for apermit shall comply with the following guidelines:

(a) The applications shall be in writingand shall include the names of theleaders or organizers; the purpose ofsuch public assembly; the date, time

and duration thereof, and place orstreets to be used for the intendedactivity; and the probable number ofpersons participating, the transportand the public address systems to beused.

(b) The application shall incorporate theduty and responsibility of applicantunder Section 8 hereof.

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Digests of Selected 2006-2007 Azcuna Decisions(c) The application shall be filed with the

office of the mayor of the city ormunicipality in whose jurisdiction theintended activity is to be held, atleast five (5) working days beforethe scheduled public assembly.

(d) Upon receipt of the application, which

must be duly acknowledged inwriting, the office of the city ormunicipal mayor shall cause thesame to immediately be posted at aconspicuous place in the city ormunicipal building.

SEC. 6. Action to be taken on the application.

(a) It shall be the duty of themayor or any official actingin his behalf to issue or granta permit unless there is clearand convincing evidence that

the public assembly willcreate a clear and presentdanger to public order,public safety, publicconvenience, public moralsor public health.

(b) The mayor or any officialacting in his behalf shall acton the application within two(2) working days from thedate the application wasfiled, failing which, thepermit shall be deemedgranted. Should for anyreason the mayor or anyofficial acting in his behalfrefuse to accept theapplication for a permit, saidapplication shall be postedby the applicant on thepremises of the office of themayor and shall be deemedto have been filed.

(c) If the mayor is of the viewthat there is imminent and

grave danger of asubstantive evil warrantingthe denial or modification ofthe permit, he shallimmediately inform theapplicant who must be heardon the matter.

(d) The action on the permit shallbe in writing and served onthe applica[nt] withintwenty-four hours.

(e) If the mayor or any officialacting in his behalf deniesthe application or modifiesthe terms thereof in hispermit, the applicant maycontest the decision in anappropriate court of law.

(f) In case suit is brought beforethe Metropolitan Trial Court,the Municipal Trial Court, theMunicipal Circuit Trial Court,the Regional Trial Court, orthe Intermediate Appellatecourt, its decisions may beappealed to the appropriatecourt within forty-eight (48)hours after receipt of thesame. No appeal bond andrecord on appeal shall berequired. A decision

granting such permit ormodifying if in termssatisfactory to the applicantshall be immediatelyexecutory.

(g) All cases filed in court underthis section shall be decidedwithin twenty-four (24)hours from date of filing.Cases filed hereunder shallbe immediately endorsed tothe executive judge fordisposition or, in his

absence, to the next in rank.

(h) In all cases, any decision maybe appealed to the SupremeCourt.

(i) Telegraphic appeals to befollowed by formal appealsare hereby allowed.

SEC. 7. Use of Public throroughfare. Should the proposedpublic assembly involve the use, for an appreciable length oftime, of any public highway, boulevard, avenue, road orstreet, the mayor or any official acting in his behalf may, toprevent grave public inconvenience, designate the routethereof which is convenient to the participants or reroute thevehicular traffic to another direction so that there will be noserious or undue interference with the free flow of commerceand trade.

SEC. 8. Responsibility of applicant. It shall be the duty andresponsibility of the leaders and organizers of a publicassembly to take all reasonable measures and steps to theend that the intended public assembly shall be conducted

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Digests of Selected 2006-2007 Azcuna Decisionspeacefully in accordance with the terms of the permit. Theseshall include but not be limited to the following:

(a) To inform the participantsof their responsibilityunder the permit;

(b) To police the ranks of the

demonstrators in orderto prevent non-demonstrators fromdisrupting the lawfulactivities of the publicassembly;

(c) To confer with localgovernment officialsconcerned and lawenforcers to the end thatthe public assembly maybe held peacefully;

(d) To see to it that the public

assembly undertakenshall not go beyond thetime stated in thepermit; and

(e) To take positive steps thatdemonstrators do notmolest any person or doany act undulyinterfering with therights of other personsnot participating in thepublic assembly.

SEC. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holdingof a public assembly. However, to adequately ensure publicsafety, a law enforcement contingent under the command ofa responsible police officer may be detailed and stationed in aplace at least one hundred (100) meters away from the areaof activity ready to maintain peace and order at all times.

SEC. 10. Police assistance when requested. It shall beimperative for law enforcement agencies, when theirassistance is requested by the leaders or organizers, toperform their duties always mindful that their responsibility toprovide proper protection to those exercising their right

peaceably to assemble and the freedom of expression isprimordial. Towards this end, law enforcement agencies shallobserve the following guidelines:

(a) Members of the lawenforcement contingent whodeal with the demonstratorsshall be in complete uniformwith their nameplates andunits to which they belongdisplayed prominently on thefront and dorsal parts of

their uniform and mustobserve the policy of

maximum tolerance asherein defined;

(b) The members of the lawenforcement contingent shallnot carry any kind of

firearms but may beequipped with baton or riotsticks, shields, crash helmetswith visor, gas masks, bootsor ankle high shoes with shinguards;

(c) Tear gas, smoke grenades,water cannons, or anysimilar anti-riot device shallnot be used unless the publicassembly is attended byactual violence or seriousthreats of violence, or

deliberate destruction ofproperty.

Sec. 11. Dispersal of public assembly with permit. No publicassembly with a permit shall be dispersed. However, whenan assembly becomes violent, the police may disperse suchpublic assembly as follows:

(a) At the first sign of impending violence, theranking officer of the lawenforcement contingentshall call the attention ofthe leaders of the publicassembly and ask thelatter to prevent anypossible disturbance;

(b) If actual violence starts toa point where rocks orother harmful objectsfrom the participants arethrown at the police orat the non-participants,or at any propertycausing damage to suchproperty, the ranking

officer of the lawenforcement contingentshall audibly warn theparticipants that if thedisturbance persists, thepublic assembly will bedispersed;

(c) If the violence ordisturbance prevailing asstated in the precedingsubparagraph should not

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Digests of Selected 2006-2007 Azcuna Decisionsstop or abate, theranking officer of the lawenforcement contingentshall audibly issue awarning to theparticipants of the publicassembly, and afterallowing a reasonableperiod of time to lapse,

shall immediately order itto forthwith disperse;

(d) No arrest of any leader,organizer or participantshall also be madeduring the publicassembly unless heviolates during theassembly a law, statute,ordinance or anyprovision of this Act.Such arrest shall begoverned by Article 125of the Revised PenalCode, as amended;

(e) Isolated acts or incidentsof disorder or breach ofthe peace during thepublic assembly may bepeacefully dispersed.

SEC. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where apermit is required, the said public assembly may be peacefullydispersed.

SEC. 13. Prohibited acts. The following shall constituteviolations of the Act:

(a) The holding of any publicassembly as defined in this

Act by any leader ororganizer without havingfirst secured that writtenpermit where a permit isrequired from the officeconcerned, or the use ofsuch permit for such

purposes in any place otherthan those set out in saidpermit: Provided, however,That no person can bepunished or held criminallyliable for participating in orattending an otherwisepeaceful assembly;

(b) Arbitrary and unjustifieddenial or modification of apermit in violation of the

provisions of this Act by themayor or any other officialacting in his behalf;

(c) The unjustified and arbitraryrefusal to accept oracknowledge receipt of theapplication for a permit by

the mayor or any officialacting in his behalf;

(d) Obstructing, impeding,disrupting or otherwisedenying the exercise of theright to peaceful assembly;

(e) The unnecessary firing offirearms by a member of anylaw enforcement agency orany person to disperse thepublic assembly;

(f) Acts in violation of Section 10hereof;

(g) Acts described hereunder ifcommitted within onehundred (100) meters fromthe area of activity of thepublic assembly or on theoccasion thereof:

1. the carrying of a deadly oroffensive weapon or

device such as firearm,pillbox, bomb, and thelike;

2. the carrying of a bladedweapon and the like;

3. the malicious burning ofany object in the streetsor thoroughfares;

4. the carrying of firearms bymembers of the lawenforcement unit;

5. the interfering with orintentionally disturbingthe holding of a publicassembly by the use of amotor vehicle, its hornsand loud sound systems.

SEC. 14. Penalties. Any person found guilty and convictedof any of the prohibited acts defined in the immediatelypreceding section shall be punished as follows:

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Digests of Selected 2006-2007 Azcuna Decisions(a) violation of subparagraph (a) shall be

punished by imprisonment of onemonth and one day to six months;

(b) violations of subparagraphs (b), (c), (d),(e), (f), and item 4, subparagraph (g)shall be punished by imprisonment of

six months and one day to six years;

(c) violation of item 1, subparagraph (g)shall be punished by imprisonment ofsix months and one day to six yearswithout prejudice to prosecution underPresidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 ofsubparagraph (g) shall be punished byimprisonment of one day to thirtydays.

SEC. 15. Freedom parks. Every city and municipality in thecountry shall within six months after the effectivity of this Actestablish or designate at least one suitable freedom park ormall in their respective jurisdictions which, as far aspracticable, shall be centrally located within the poblacionwhere demonstrations and meetings may be held at any timewithout the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, therespective mayors shall establish the freedom parks within theperiod of six months from the effectivity this Act.

SEC. 16. Constitutionality.Should any provision of thisAct be declared invalid or unconstitutional, the validity or

constitutionality of the other provisions shall not be affectedthereby.

SEC. 17. Repealing clause. All laws, decrees, letters ofinstructions, resolutions, orders, ordinances or parts thereofwhich are inconsistent with the provisions of this Act arehereby repealed, amended, or modified accordingly.

SEC. 18. Effectivity. This Act shall take effect upon itsapproval.

Approved, October 22, 1985.

ENCARNACION E. SANTIAGO v. COA & DIR of COAG. R. No. 146824, June 15, 2006Facts: The COA examined the cash and accounts of MunicipalTreasurer Santiago and Municipal Accountant Ortua and foundthat Santiago fell short of her accountability totaling Php 3.5Mand that the two officials manipulated books of accounts of themunicipality. Due to Santiagos failure to submit all theliquidating documents, she was relieved from her duties andresponsibilities as MT and criminal cases were filed against herafter she admitted that there were said shortages. The State

Auditor directed the mayor to withhold payment of the salaryand other emoluments due Santiago and apply said withheld

amounts in satisfaction of the shortage pursuant to Sec. 37 ofthe Govt Auditing Code of the Phils:

Sec. 37. Retention of money for satisfaction of indebtedness togovernment. When any person is indebted to any governmentagency, the Commission [on Audit] may direct the proper officerto withhold the payment of any money due such person or hisestate to be applied in satisfaction of the indebtedness.

Because of this, Santiago was not able to collect her salary,which, were used to pay her cash shortage. She then requestedreconsideration of the directive alleging that there is no validbasis for the application of her salary, without her consent, tothe unconfirmed accountability, and that there is no final judiciaorder that she incurred such accountability. Her request wasdenied by the COA.

ISSUE:WON the salary of a govt employee be ordered withheld,retained and applied to the payment of public funds allegedlyembezzled under the employees care on the basis of an auditreport and the filing of administrative and criminal (malversationof public funds) cases against the employee.

HELD: YES.Under Par 8 of the COA Guidelines, the examiner/auditor isauthorized to direct the proper officer to withhold the paymentof any money due the accountable officer, except retirementpay or gratuity due her/him, as soon as the cash shortage isascertained and is not contested.

In this case, Santiago never disputed the demand lettersinforming her of her cash shortage. Hence, the directive of State

Auditor del Rosario to withhold petitioners salary was in order.

The State Auditors finding of cash shortage against Santiago,which has not been satisfactorily disputed is prima facieevidence against her. The prima facieevidence suffices for the

withholding of her salary, in order to safeguard the interest ofthe Government.

However, it must be stated that although State Auditor properlydirected the Mayor to withhold Santiagos salary and otheremoluments, she incorrectly directed that the same be appliedor set off against Santiagos cash shortage. As ruled inVillanueva v. Tantuico, before set-off can take place under Sec21 of the Administrative Code of 1987, a persons indebtednessto the government must be one that is admitted by him orpronounced by final judgment of a competent court. In thiscase, the indebtedness was not admitted by Santiago and acompetent court has not yet pronounced final judgmentthereon.

As a result, the amount of Santiagos salary remitted to the locagovt treasurer as payment of Santiagos cash shortage shouldbe considered merely withheld until final resolution on herindebtedness. In the event that petitioner is found not liable forthe cash shortage, the withheld salary and other emolumentswill be released to her; otherwise, it will be applied in paymentof her indebtedness.

The petition was partly granted. The COA is authorized merelyto withhold Santiagos salary but not to apply it to the allegedshortage for which her liability is still being litigated.

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Digests of Selected 2006-2007 Azcuna Decisions

DIMAYUGA v. OMBUDSMANGR No. 129099, July 20, 2006Facts: Petitioners Dimayuga, Inumerable and Aguinaldo wereemployees of the Traffic Regulatory Board (TRB) of the DPWH.In June 1992, an anonymous complaint was filed againstpetitioners concerning certain transactions of the TRB from

1989 to May 1992. Consequently, a special audit wasconducted by the Special Audit Office (SAO) of the Commissionon Audit (COA). As a consequence, certain irregularities wereuncovered, in which petitioners were implicated. The SAO reportrecommended appropriate action against petitioners.

Petitioners motion for reconsideration of said report wasdenied by the COA Chairman. Petitioners filed a Memorandumon Appeal before the COA Chairman. Meanwhile, the auditreport was forwarded to the DPWH Secretary, who thenindorsed the same to respondent Ombudsman for appropriateaction. Accordingly, petitioners were charged with violation ofthe Anti-Graft Law or Republic Act 3019. RespondentOmbudsman required state auditors of the COA-SAO Team to

submit their sworn complaint on the basis of their report forpurposes of initiating the preliminary investigation. In view ofthis, petitioners filed a Motion for Suspension of PreliminaryInvestigation. In said motion, petitioners argue that the SAOreport was not yet final, considering that their appeal with theCOA Chairman had not yet been resolved. Respondent,however, denied petitioners motion for reconsideration.

The Omnibus Motion for Reconsideration filed by petitioners wasdenied by respondent. Hence, this petition for certiorari with aplea for temporary restraining order and writ of preliminaryinjunction.

Issue 1: Whether or not the investigation of the charges in thecomplaint filed by the SAO-COA against petitioners is premature

Held:NO . Although the COA report may aid the Office of theOmbudsman in conducting its preliminary investigation, suchreport is not a prerequisite. Both the Constitution and theOmbudsman Act of 1989 state that the Office of theOmbudsman may undertake an investigation on complaint or onits own initiative. Therefore, with or without the report fromCOA, the Ombudsman can conduct a preliminary investigation.This Court has declared that the findings in a COA report or thefinality or lack of finality of such report is irrelevant to theinvestigation of the Office of the Ombudsman in itsdetermination of probable cause.

It should be borne in mind that the interest of the COA is solelyadministrative, and that its investigation does not foreclose theOmbudsman's authority to investigate and determine whetherthere is a crime to be prosecuted for which a public official isanswerable. The finding of probable cause does not derive itsveracity from the findings of the COA, but from the independentdetermination of the Ombudsman.

Issue 2: Whether or not respondent ombudsman violatedpetitioners constitutional right to equal protection of the laws,in not affording petitioners the same relief it afforded to thepublic official involved in COA v. Gabor.

Held: NO . The Office of the Ombudsman has been grantedvirtually plenary investigatory powers by the Constitution and bylaw. Thus, as a rule, the Office of the Ombudsman may, foevery particular investigation, whether instigated by a complainor on its own initiative, decide how best to pursue eachinvestigation. This power gives the Office of the Ombudsmanthe discretion to dismiss without prejudice a preliminaryinvestigation if it finds that the final decision of COA inecessary for its investigation and the future prosecution of the

case. In another case with similar factual antecedents, it maypursue the investigation because it realizes that the decision ofCOA is irrelevant or unnecessary to the investigation andprosecution of the case. Since the Office of the Ombudsman isgranted such latitude, its varying treatment of similarly situatedinvestigations cannot by itself be considered a violation of anyof the parties rights to the equal protection of the laws.

HEIRS OF THE LATE SPOUSES PEDRO S. PALANCAAND SOTERRANEA RAFOLS VDA. DE PALANCA VS.REPUBLICGR 151312, August 30, 2006Facts: The heirs of Pedro Palanca filed an application to bringthe pieces of land they allegedly own under the LandRegistration Act, alleging that they acquired the properties fromPedro, who in turn had been in possession of the land inconcept of an owner 39 years before the filing of theapplication. In a civil suit, these heirs were also declared as therightful possessor of the land. Verbal oppositions by were madeby the (1) Provincial Fiscal, in behalf of the Bureau of ForestDevelopment, Bureau of Lands and the Department of AgrarianReform, (2) some inhabitants and (3) Alfonso Guillamac. Theseverbal oppositions did not ripen into formal oppositions.

The pieces of evidence presented by the heirs are: plans andsurvey certificate of the land approved by the Bureau of Lands

tax declarations over the land, testimonies of neighbors sayingthat they recognize Pedro as possessor of the land for at least30 years, testimony of overseer of coconut plantationestablished over the properties, testimony of agents of theBureau of Lands to the effect that they surveyed the land andissued the certification that the properties were available for anapplication.

After trial, the Court of First Instance declared the heirs as theowners in fee and simple of the two parcels of land and orderedthe issuance of an Original Certificate of Title in favor of theheirs. After almost 23 years, the Republic of the Philippines filedwith the Court of Appeals a petition for annulment of judgmentcancellation of decree of registration and title and reversion

upon the ground that the properties are of public domain asforest reserves and that the properties are still unclassified. TheCourt of Appeals granted the petition, the heirs are now beforethe Supreme Court under Rule 45. The Supreme Court widismiss the petition of the heirs.

Issue 1: Whether or not the action of the Republic hasprescribed.

Held: No, the action of the Republic has not prescribed. Anaction for reversion filed by the State to recover propertyregistered in favor of any party which is part of the public foresor of a forest reservation never prescribes. Non-disposable

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Digests of Selected 2006-2007 Azcuna Decisionspublic lands registered under the Land Registration Act may berecovered by the State at any time and defenses ofres judicatawould not apply as courts have no jurisdiction to dispose ofsuch land of the public domain.

Issue 2: Whether or not the land can be registered underSec.48(b) of the Public Land Act.

Held: No, the land cannot be registered under Sec.48(b) ofthe Public Land Act. Although the applicants have compliedwith the requirement under Sec.48(b) that they have been inpossession and occupation of the land for at least 30 years, theyhave not met the requirement that the land sought to beregistered is a public agricultural land, an essential requirementthat cannot be disposed with.

Issue 3: Whether or not a public forest or forestsreserve are alienable lands.

Held: No, public forests or forests reserves are not alienablelands. Possession over public lands cannot ripen into ownershipuntil and unless the land classified as forest is released in anofficial proclamation to the effect that it may form part of the

disposable lands of the public domain. When the land is stillunclassified, whatever possession applicants may have had, andhowever long, still cannot ripen into private ownership.

PCGG v. DESIERTOG.R. No. 135123, January 22, 2007Facts: Herminio T. Disini, a personal friend and golfing partnerof the late President Ferdinand E. Marcos, gave to the lattershares of stock of Vulcan Industrial and Mining Corporation(VIMC) and The Energy Corporation (TEC) worth P40,000,000and P25,000,000, respectively, which shares of stock were inthe name of Herdis Group, Inc. (HGI for short), a localcorporation controlled by Disini. The stock certificates covering

the above mentioned shares of stocks were among thedocuments found in Malacaang in the possession of the latePresident when he fled to Hawaii sometime in February 1986.

Velayo submitted an affidavit, alleging therein that, since thecomplaint and its annexes refer to a transaction involving the

Vulcan Industrial and Mining Corporation, The EnergyCorporation, the Herdis Group, Inc., Mr. Herminio Disini, andthe late President Marcos, the same does not in any wayconcern him.PCGG dismissed the complaint, saying the evidence was hearsayand denied reconsideration of the dismissal.

Issue: WON the Ombudsman act without or in excess of hisjurisdiction, or with grave abuse of discretion amounting to lackor excess of jurisdiction, in issuing the assailed resolution andorder.

Held: YES. The Ombudsman has ignored vital evidencesubmitted by petitioner consisting not only of the stockcertificates of VMC and TEC found in Malacaang when the latePresident Marcos fled the country but also the affidavit executedby private respondent Manahan stating that there was adivestment plan to turn over those certificates to the latePresident. Notwithstanding these, he found no probable cause

to charge private respondents with violation of, the Anti-Graftand Corrupt Practices Act.

The wide latitude in determining the existence of probablecause or the lack of it cannot be exercised arbitrarily. TheOmbudsman must weigh "facts and circumstances withouresorting to the calibrations of our technical rules of evidence xx x. Rather, he relies on the calculus of common sense of whichall reasonable men have an abundance.""A finding of probable

cause needs only to rest on evidence showing that more likelythan not a crime has been committed and was committed bythe suspects. Probable cause need not be based on clear andconvincing evidence of guilt, neither on evidence establishingguilt beyond reasonable doubt and, definitely not on evidenceestablishing absolute certainty of guilt."A finding of probablecause "is not a pronouncement of guilt."

It is well settled that as long as substantial evidence supports itthe Ombudsman's ruling will not be overturned. Courts shouldnot interfere with the "exercise of the Ombudsmans powersbased upon constitutional mandate. However, where thereappears to be a grave abuse of discretion, as there appears tobe here, the Court will so declare and direct that the proper

complaint or information be filed. The resolution of dismissal isnot based on the evidence presented and is not warranted bythe facts thus far available to public respondent.The case is REMANDED for the filing of the proper information.

LABOR LAWPLDT v. IMPERIALG.R. No. 149379, June 15, 2006

Facts: Imperial, a PLDT lineman, was ordered by PLDTs Senior Line

Foreman to drive the service vehicle of the group of ForemanBuenaventura, Barroga, and Cruz to recover cable wires inTaguig. The cable wires, about 457 ft cut into 3 rolls, wererecovered by the group. But on their way back to thewarehouse, the service vehicle allegedly had a mechanicamalfunction (initially Imperial, Barroga and Cruz said thavehicle sustained sliding clutch; later, they said that the heavyweight of cable wires caused the unloading; Finally howeverin a report filed by Barroga, he said that the only defect of thevehicle was the muffler!) which prompted ForemanBuenaventura to order the unloading of 254.3 ft of recoveredcable wires valued at P26900 to another PLDT employeeFlores house nearby. More than a week later, PLDT retrievedfrom Flores the 254.3 ft of cable.

Prosecutor recommended information for Qualified Theft be

filed against Imperial, Buenaventura, Barroga, Cruz andFlores, which was approved by provincial prosecutor and filedbefore RTC. RTC acquitted the accused for insufficiency ofevidence. However, PLDT already terminated employment ofall the accused.

Imperial filed complaint for illegal dismissal before DOLEagainst PLDT. Labor Arbiter held for PLDT, believing Imperiawas dismissed for just cause: 1) Imperial was one of thosewho unloaded the cable wires and then stored it in Floreshouse; 2) he presented a questionable affidavit of Cable

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Digests of Selected 2006-2007 Azcuna DecisionsRecovery which claims that Buenaventura already deliveredthe cable wires to the warehouse when the cables were foundin Flores house; and 3)the inconsistent statements given bythe accused employees. On Appeal, Imperial raised thedefense of being acquitted in the criminal case and that hewas merely a driver assigned to the group. However, NLRCalso held for PLDT. Imperial did not file a MFR and filed aPetition for Certiorari w/ CA. The petition was initiallydismissed but was reinstated by the CA, and held in favor of

Imperial, arguing that the failure of Imperial to disobey theorders of Foreman Buenaventura to unload the cables wasnot enough ground for his termination, and evidencepresented not enough to show theft or dishonesty on part ofImperial. Imperial was held to be dismissed without justcause.

Issue 1 : WON the f indings of fac ts of the LaborArbiter and NLRC are subject to judicial r eview by CA.HELD: Yes. The Court of Appeals, in view of its expanded

jurisdiction over labor cases elevated to it through a petition forcertiorari such as in this case, may look into the records of thecase and re-examine the questioned findings if it considers the

same to be necessary to arrive at a just decision. xXx Further,when the circumstances so warrant, the Court of Appeals candisregard the factual findings of the NLRC. While as a rule,factual findings of agencies exercising quasi-judicial functionssuch as the NLRC are accorded not only respect but evenfinality, and that judicial review of labor cases does not go sofar as to evaluate the sufficiency of evidence on which the laborofficials findings rest; more so when both the labor arbiter andthe NLRC share the same findings, such as in the present case,the Court cannot affirm the decision of the NLRC when itsfindings of fact on which the conclusion was based are notsupported by substantial evidence. By substantial evidence, wemean the amount of relevant evidence which a reasonable mindmight accept as adequate to justify the conclusion. Based on

the foregoing, for want of substantial basis, in fact or in law, thefactual findings of an administrative agency, such as the NLRC,cannot be given the stamp of finality and conclusivenessnormally accorded to it, as even decisions of administrativeagencies which are declared "final" by law are not exempt form

judicial review when so warranted.

Issue 2 : WON fa ilure to f ile an MR of the NLRCresolution is a fatal procedural defect.HELD: No. While a motion for reconsideration under the Rulesof Court is required before a petition for certiorari is filed, therules admit of certain exceptions, among which is the findingthat under the circumstances of the case, a motion for

reconsideration would be useless. xXx Likewise, we have ruledthat with regard to procedural errors committed by a party to acase, fundamental consideration of substantial justice persuadesus to decide the case on the merits rather than to dismiss it ona technicality. In so doing, we exercise our prerogative in laborcases that no undue sympathy is to be accorded to any claim ofprocedural misstep, the idea being that our power must beexercised according to justice and equity and substantial meritsof the controversy.

CIVIL LAW

RAMIREZ vs. RAMIREZG.R. No. 165088, March 17, 2006Facts: Potenciano Ramirez sued Ma. Cecilia Ramirez (hisdaughter) for annulment of Deed of Donation, Waiver oPossessory Rights and Transfer Certificates of Title for 2 lotsPetitioner claims that Cecilia caused the execution of the Deedof Donation and Waiver of POssessory rights to acquireownership over the land and improvements thereon. The Deed

of Donation was used to cancel the TCT and issue new TCTs inCecilias name. The Waiver of Possessory Rights were used tocause the Office of the City Assessor to transfer to Cecilia thetax declarations on the improvements in the land. Allegedly, theDeed of Donation and Waiver of Possessory Rights wereexecuted by Potenciano and his wife. But the death certificate othe wife showed that she died before the date of the executionof the alleged documents. Potenciano also denied the signaturesappearing in the documents (saying there is forgery). Cecilia, inher answer, said that it was Potencianos idea to cause thepreparation of the Deed of Donation and Waiver of PossessoryRights to save on expenses for publication and inheritance taxes

RTC: signature of Dolores (the mom) on the deed of sale was a

forgery but on the waiver of possessory rights was genuinePotencianos signatures are genuine. Also found that Potencianoand Cecilia are in pari delicto, as participants to the forgeryhence bear the consequence of their acts without cause oaction against each other, applying Art. 1412 of the Civil Code.

CA: even Dolores signature on the Waiver of Possessory Rightsis a forgery. Also said both parties are in pari delicto.

Issue: WON Potenciano and Cecilia are in pari delicto?Held: YES. Donations are governed by Title 3, Book III of theCC. Donations inter vivos are governed by general provisions onoblicon in all that is not determined by the title governing

donations. Rule on pari delicto under general provisions ocontracts is applicable in the present case. But court said the TCerred in applying Article 1412 of the CC which provides:

ARTICLE 1412. If the act in which the unlawful orforbidden cause consists does not constitute acriminal offense, the following rules shall beobserved:(1) When the fault is on the part of bothcontracting parties, neither may recover what hehas given by virtue of the contract, or demand theperformance of the other's undertaking;(2) When only one of the contracting partiesis at fault, he cannot recover what he has given byreason of the contract, or ask for the fulfillment ofwhat has been promised him. The other, who is

not at fault, may demand the return of what he hasgiven without any obligation to comply with hispromise

Article 1412 does not apply coz it refers to a situation where thecause of the contract is unlawful or forbidden but does noconstitute a violation of the criminal laws. This case involves acriminal offense so the applicable law is Article 1411 of the CC.

ARTICLE 1411. When the nullity proceeds fromthe i l legal ity of the cause or object of thecontract, and the act constitutes a criminal offense,both parties being in pari delicto, they shall have no

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Digests of Selected 2006-2007 Azcuna Decisionsaction against each other, and both shall beprosecuted. Moreover, the provisions of the PenalCode relative to the disposal of effects orinstruments of a crime shall be applicable to thethings or the price of the contract.

This rule shall be applicable when only one of theparties is guilty; but the innocent one may claimwhat he has given, and shall not be bound tocomply with his promise.

The case at bar involves forgery. (Cecilia does not deny theallegation of forgery of Dolores signature). It is punishableunder Sec. 4, Title IV of the RPC.

But petitioner argues that the object or cause is thetransferred real properties and there is nothing illegal aboutthem.

The Courtsaidthat object and cause are two separate elementsof a donation, and the illegality of either element gives rise tothe application of the doctrine of pari delicto.

Object: is the subject matter of the donationCause: is the essential reason which movesthe parties to enter into the transaction.2

In the case at bat, the donated properties, being the object, arelegal. But the cause which moved the parties to execute thedocuments (the motive behind the forgery) is the desire toevade the payment of publication expenses and inheritancetaxes, which became due upon the death of Dolores, which isundeniable an illegal cause. Hence, Article 1411 applies.

Both Potenciano and Cecilia, being in pari delicto, have no causeof action against each other. Court will leave them as they wereat the time the case was filed.

GERMELINA TORRES RACAZA AND BERNARDITATORRES PARAS VS. ERNESTO GOZUMG.R. No. 148759, June 8, 2006Facts: The plaintiffs are the registered co-owners of a parcel ofland with a 2-storey, 3-door apartment, which was formerlyowned by their father. Defendant leased the back portion of theproperty and continued to occupy the same even after thedeath of plaintiffs father. Plaintiffs thereafter sent a letter ofdemand to vacate the premises. An ejectment case was filedbut was dismissed due to technicality. Almost two yearsthereafter, plaintiffs sent a new a formal demand letter tovacate on the ground that the verbal contract of lease over theproperty had already expired and the same has not beenrenewed and since then, defendant had discontinued paying themonthly rentals. When demand was not heeded, a complaint forrecovery of possession or accion publicianawas initiated beforethe RTC. RTC rendered judgment in favor of plaintiffs.Respondent appealed to the CA, relying on the contract of leaseto justify his continued possession. CA reversed and set asidedecision of RTC, holding that RTC had no jurisdiction over the

2The cause is the immediate, direct and proximate reason whichjustifies the creation of an obligation through the will of the contractingparties (Tong Brothers Co. v. Intermediate Appellate Court, G.R. No.L-73918, December 21, 1987, 156 SCRA 726).

complaint for accion publicianaconsidering that it had been filedbefore the lapse of one year from the date the last letter ofdemand to respondent had been made.

Issue 1: WON RTC is without jurisdiction to hear case, makingthe entire proceeding null and void.Held: The allegations of a complaint determine the nature othe action as well as which court will have jurisdiction over the

case. The complaint would be deemed sufficient if, on its face, ishows that the court has jurisdiction without resorting to parotestimony. Since ejectment proceedings are summary in naturethe complaint should contain a statement of facts which wouldbring the party clearly within the class of cases for which thestatutes provide a remedy.

Petitioners complaint could fall under two kinds of ejectmentsuits, the first being for unlawful detainer cognizable by theMTCs under Rule 70 and the second being for accion publicianacognizable by the RTCs. An action for unlawful detainer existswhen a person unlawfully withholds possession of any land obuilding against or from a lessor, vendor, vendee or othepersons, after the expiration or termination of the right to hold

possession, by virtue of any contract, express or implied. Thissummary action should be filed with the municipal trial courtswithin one year after the occurrence of the unlawful deprivationor withholding of possession. Beyond the one-year period, thereal right of possession may be recovered through the filing oan accion publicianawith the RTC.

Respondent insists, that the one-year period must be reckonedfrom the date of the second demand letter to vacateConsidering that petitioners complaint was filed within daysfrom this date, respondent contends that the RTC had no

jurisdiction to hear the case.

Demand or notice to vacate is not a jurisdictional requiremen

when the action is based on the expiration of the lease. Anynotice given would only negate any inference that the lessor hasagreed to extend the period of the lease. The one-year period isthus counted from the date of first dispossession. Subsequentdemands which are merely in the nature of reminders oreiterations of the original demand do not operate to renew theone-year period within which to commence the ejectment suitconsidering that the period will still be reckoned from the dateof the original demand.

Moreover, it is too late for respondent to invoke the defense oflack of jurisdiction on the ground that the action was filedbefore the lapse of one year from the date of last demand.Based on the records, respondent never pursued this line of

argument in the proceedings before the trial court and even inhis appeal to the CA. A partys active participation in all stagesof the case before the trial court, which includes invoking thecourts authority to grant affirmative relief, effectively estopsuch party from later challenging that same courts jurisdiction.

Issue 2: WON respondents appeal had become moot andacademic with the expiration of the lease contract upon hiappeal rested.

Held: By respondents own claim, the term of the allegedwritten lease contract expired several months before thedecision of the CA was rendered. The CA should have taken

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Digests of Selected 2006-2007 Azcuna Decisionscognizance of this material fact considering that the statementis binding upon respondent and is an admission which rendersmoot the issue of who has a better right of possession.

CARLOS DE GUZMAN V. TOYOTA CUBAO, INC.GR 141480, Nov. 29, 2006Facts:On November 27, 1997, petitioner purchased from respondent abrand new white Toyota Hi-Lux 2.4 SS double cab motorvehicle, 1996 model, in the amount of Php508, 000. Petitionermade a down payment of Php152, 400, leaving a balance ofPhp355, 600 which was payable in 36 months with 54%interest. The vehicle was delivered to petitioner 2 days later.

On October 18, 1998, petitioner demanded the replacement ofthe engine of the vehicle because it developed a crack aftertraversing Marcos Highway during a heavy rain. Petitionerasserted that respondent should replace the engine with a newone based on an implied warranty. Respondent countered thatthe alleged damage on the engine was not covered by awarranty.

On April 20, 1999, petitioner filed a complaint for damagesagainst respondent with the RTC. Respondent moved to dismissthe complaint on the ground that under Art. 1571 (NCC), thepetitioners cause of action had prescribed because it was filedmore than 6 months from the date the vehicle was sold and/ordelivered.RTC granted respondents motion to dismiss and deniedpetitioners motion for reconsideration. Hence, this petition forreview on certiorari

Held: Petition should be denied.1) On procedural grounds: petition violated hierarchy ofcourts.

When petitioner received a copy of the order denying his motionfor reconsideration from the RTC on January 18, 2000, he had15 days from receipt within which to appeal to the CA by filing anotice of appeal under Sec. 2(a) of Rule 41, from an order ofthe RTC issue in the exercise of its original jurisdiction. Theappropriate remedy petitioner should have taken was to file anotice of appeal fro the RTC to the CA, not a petition for reviewon certiorari directly with the SC.

Although petitioner intended his petition to be one filed underRule 45 and he filed it within the 15-day reglementary period,the same was in effect a petition for certiorari under Rule 65,and is therefore dismissible for violation of the hierarchy of

courts under Sec. 4 thereof. Petitioner failed to show thatspecial and important reasons or exceptional and compellingcircumstances exist to justify a direct filing of the petition withthe SC likewise; petitioner cannot find refuge in the argumentthat he was raising pure questions of law. The sole matterpetitioner assails in this action is the RTCs order of dismissal ofhis complaint for damages on the ground of prescription whichwas tantamount to adjudication on the merits.

2) Petition should be denied for lack of merit.

Petitioner contends that the dismissal on the ground oprescription was erroneous because the applicable provision is

Art. 169 of RA 7394 (The Consumer Act of the Philippines) andnot Art. 1571 of the Civil Code. Petitioner specifies that in hiscomplaint, he neither asked for a rescission of the contract ofsale nor did he pray for a proportionate reduction of thepurchase price. What he claims is the enforcement of thecontract (i.e. that respondent should replace either the vehicleor its engine with a new one). In this regard, petitioner cites

Art. 169 of RA 7394 as the applicable provision, so as to makehis suit come within the purview of the 2-year prescriptiveperiod. Tangentially, petitioner also justifies that his cause ofaction has not yet prescribed because his present suit, whichwas an action based on quasi-delict, prescribes in 4 years

Petitioners argument is erroneous. Art. 1495 (NCC) states thain a contract of sale, the vendor is bound to transfer theownership of and to deliver the thing that is the object of saleCorollarily, the pertinent provisions of the Code set forth theavailable remedies of a buyer against the seller on the basis of awarranty against hidden defects (see Arts. 1561, 1566 and1571). Under Art. 1599 (NCC), once an express warranty isbreached, the buyer can accept or keep the goods and maintain

an action against the seller for damages. In the absence of anexisting express warranty on the part of the respondent, theallegations in petitioners complaint for damages were clearlyanchored on the enforcement of an implied warranty againsthidden defects (i.e. that the engine of the vehicle whichrespondent sold to him was not defective). By filing this casepetitioner wants to hold respondent responsible for breach ofimplied warranty for having sold a vehicle with defective engineSuch being the case, petitioner should have exercised this righwithin 6 months from the delivery of the thing sold. Sincepetitioner filed the complaint on April 20, 1999, or more than 19months counted from November 29, 1997 (date of delivery), hiscause of action had become time-barred.

Petitioner contends that the subject motor vehicle comes withinthe context of RA 7394, thus relying on Art. 68 (f) (2) in relationto Art. 169 of RA 7394 but even if complaint is made to falunder RA 7394, the same should still be dismissed since theprescriptive period for implied warranty thereunder, which is 1year, had likewise elapsed.

BERNARDINO S. ZAMORA vs. COURT OF APPEALS andNORMA MERCADO ZAMORAG.R. No. 141917, February 7, 2007FACTS: Petitioner and private respondent were married onJune 4, 1970 in Cebu City. They lived together after themarriage but the union did not produce any child. In 1972,

private respondent left for the United States to work as a nurse,she returned to visit periodically, leaving again in 1974 andbecoming a U.S. citizen in 1989.Petitioner filed a complaint for declaration of nullity of marriageanchored on the alleged "psychological incapacity" of privaterespondent, as provided for under Article 36 of the Family Code.He alleged that his wife was "horrified" by the mere thought ofhaving children as evidenced by the fact that she had not bornepetitioner a child. Also, private respondent allegedly abandonedhim by living in the U.S. and becoming a citizen; and thatthroughout their marriage they lived together for not more than3 years.

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Digests of Selected 2006-2007 Azcuna DecisionsPrivate respondent denied these allegations. She also faultedher husband for the breakup of their marriage, alleging that hehad been unfaithful. He allegedly had two affairs with differentwomen, and he begot at least three children with them.The TC dismissed the complaint. It said that plaintiff consentedto defendants trip to the US in 1974, so she could earn andhelp him build a house. She seldom saw her husband becauseof his infidelity. He himself admitted that he had children byother women. Nothing in the evidence shows that the

defendant suffered from any psychological incapacity or thatshe failed to comply with her essential marital obligations. Thereis no evidence of psychological incapacity on the part ofdefendant so that she could not carry out the ordinary dutiesrequired in married life. Neither has it been shown that therewas an incurable defect on the part of defendant.The CA affirmed the TCs ruling. It cited Leouel Santos v. Courtof Appeals3and Republic v. Court of Appeals and Molina4to saythat the appeal does not fall in the category of psychologicalincapacity. The mere refusal of the appellee to bear a child isnot equivalent to psychological incapacity, since even if suchallegation is true, it is not shown or proven that this is due topsychological illness.In this appeal, petitioner argues that there is nothing in Santos

v. CA, upon which private respondent relies, that requires as acondition sine qua non the presentation of expert opinion ofpsychologists and psychiatrists in every petition filed under

Article 36 of the Family Code. This Court merely said that "[t]hewell-considered opinions of persons with expertise inpsychological disciplines might be helpful or even desirable."However, no expert opinion is helpful or even desirable todetermine whether private respondent has been living abroadand away from her husband for many years; whether she has achild; and whether she has made her residence abroadpermanent by acquiring U.S. citizenship. Among the essentialmarital obligations embraced by Articles 68 to 71 of the sameCode is to have children which is the basic end of marriage. Themarriage had existed for twenty four years but throughout this

period, private respondent deliberately and obstinately refusedto comply with the essential marital obligation to live andcohabit with her husband.

ISSUE: WON there can be a declaration of nullity in this case,based on psychological incapacity

HELD: No. It is true that Santos v. CAdid not specificallymention that the presentation of expert opinion is a vital andmandatory requirement in filing a petition for the declaration ofnullity of marriage grounded on psychological incapacity. Evenin Republic v. Court of Appeals and Molinawhich laid down theguidelines in the interpretation and application of Art. 36,examination of the person by a physician in order for the former

to be declared psychologically incapacitated was likewise notconsidered a requirement. Marcos v. Marcosruled that what isimportant is the presence of evidence that can adequately

3"psychological incapacity should refer to no less than a mental (not physical) incapacity

x x x and that there is hardly any doubt that the intendment of the law has been to confine

the meaning of psychological incapacity to the most serious cases of personality or

inability to give meaning and significance to the marriage."

4"mere showing of irreconcilable differences and conflicting personalities in no wise

constitutes psychological incapacity. It is not enough to prove that the parties failed to

meet their responsibilities and duties as married persons; it is essential that they must be

shown to be incapable of doing so, due to some psychological (not physical) illness."

establish the partys psychological condition. If the totality ofevidence presented is enough to sustain a finding ofpsychological incapacity, then actual medical examination of theperson concerned need not be resorted to.

Also, Section 2(d) of A.M. No. 02-11-10-SC or the Rule onDeclaration of Absolute Nullity of Void Marriages and Annulmentof Voidable Marriages (03/15/2003), states that a petition under

Article 36 of the Family Code shall specifically allege the

complete facts showing that either or both parties werepsychologically incapacitated from complying with the essentialmarital obligations of marriage at the time of the celebration ofmarriage even if such incapacity becomes manifest only after itscelebration. The complete facts should allege the physicalmanifestations, if any, as are indicative of psychologicalincapacity at the time of the celebration of the marriage butexpert opinion need not be alleged(d) What to allege).

Facts alleged in the petition and the evidence presented,considered in totality, should be sufficient to convince the courtof the psychological incapacity of the party concerned.Petitioner herein failed to substantiate his allegation that privaterespondent is psychologically incapacitated. His allegations

relating to her refusal to cohabit with him and to bear a childwas strongly disputed, as the records undeniably bear out.Furthermore, the acts and behavior of private respondent thatpetitioner cited occurred during the marriage, and there is noproof that the former exhibited a similar predilection evenbefore or at the inception of the marriage.

TAXATIONBICOLANDIA DRUG CORPORATION vs. CIRG.R. No. 142299, June 22, 2006

Facts: Pursuant to the provisions of R.A. No. 7432 (SeniorCitizens Act) and RR 2-94, Bicolandia Drug Corporation (BDC)granted to qualified senior citizens a 20% sales discount ontheir purchase of medicines covering the period from July 191993 to December 31, 1994. Upon filing its correspondingcorporate annual income tax returns for 1993 and 1994, iclaimed as a deduction from its gross income the amountsrepresenting the 20% sales discount it granted to seniocitizens.

On March 28, 1995, however, alleging error in the computationand claiming that the aforementioned 20% sales discountshould have been treated as a tax credit pursuant to R.A. No.7432 instead of a deduction from gross income, it filed a claimfor refund or credit of overpaid income tax for 1993 and 1994.

HELD: The 20% sales discount cannot be deductedfrom gross income.The term cost in Sec. 4(a) of R.A. No. 7432 refers to theamount of the 20% discount extended by a privateestablishment to senior citizens in their purchase of medicinesThis amount shall be applied as a tax credit, and may bededucted from the tax liability of the entity concerned. If thereis no current tax due or the establishment reports a net loss forthe period, the credit may be carried over to the succeedingtaxable year (Commissioner of Internal Revenue v. CentraLuzon Drug Corporation). The law expressly provides that the

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Digests of Selected 2006-2007 Azcuna Decisionsdiscount given to senior citizens may be claimed as a tax credit,and not a refund.

CIR vs.CENTRAL LUZON DRUG CORPORATION,G.R. No. 148512, June 26, 2006Facts: From January 1995 to December 1995, in conformity tothe mandate of Sec. 4(a) of R.A. No. 7432, Central Luzon DrugCorporation (CLDC) granted a 20% discount on the sale of

medicines to qualified senior citizens amounting to P219,778.

Pursuant to Revenue Regulations No. 2-94 implementing R.A.No. 7432, which states that the discount given to senior citizensshall be deducted by the establishment from its gross sales forvalue-added tax and other percentage tax purposes, CLDCdeducted the total amount of P219,778 from its gross incomefor the taxable year 1995. For said taxable period, it reported anet loss of P20,963 in its corporate income tax return. As aconsequence, respondent did not pay income tax for 1995.

On December 27, 1996, claiming that according to Sec. 4(a) ofR.A. No. 7432, the amount of P219,778 should be applied as atax credit, CLDC filed a claim for refund in the amount of

P150,193.

CTA denied the tax credit and ruled that there can be no taxcredit in this case when there is no tax liability or the amount ofthe tax credit is greater than the tax due. In the latter case, thetax credit will only be to the extent of the tax liability.

CA granted the tax credit. It concluded that the 20% discountgiven to senior citizens which is treated as a tax credit pursuantto Sec. 4(a) of R.A. No. 7432 is considered just compensationand, as such, may be carried over to the next taxable period ifthere is no current tax liability.

Held: Discounts given under R.A. No. 7432 should betreated as tax credits, not deductions from income.Sec. 4(a) of R.A. No. 7432 explicitly employed the word taxcredit. Nothing in the provision suggests for it to mean a

deduction from gross sales. Thus, the 20% discount requiredby the Act to be given to senior citizens is a tax credit, not adeduction from the gross sales of the establishment concerned.

As a corollary to this, the definition of tax credit found inSection 2(1) of Revenue Regulations No. 2-94 is erroneous as itrefers to tax credit as the amount representing the 20%discount that shall be deducted by the said establishment fromtheir gross sales for value added tax and other percentage taxpurposes.

Accordingly, when the law says that the cost of the discountmay be claimed as a tax credit, it means that the amount --when claimed shall be treated as a reduction from any taxliability. The law cannot be amended by a mere regulation.

229 of the Tax Code does not apply to cases that fall underSec. 4 of R.A. No. 7432 because the former provision governsexclusively all kinds of refund or credit of internal revenue taxesthat were erroneously or illegally imposed and collectedpursuant to the Tax Code while the latter extends the tax creditbenefit to the private establishments concerned even before taxpayments have been made. The tax credit that is contemplated

under the Act is a form of just compensation, not a remedy fortaxes that were erroneously or illegally assessed and collected.

Prior payment of any tax liability is not a precondition before ataxable entity can benefit from the tax credit. The credit may beavailed of upon payment of the tax due, if any. Where there isno tax liability or where a private establishment reports a neloss for the period, the tax credit can be availed of and carriedover to the next taxable year. It must also be stressed that

unlike in Sec. 229 of the Tax Code wherein the remedy ofrefund is available to the taxpayer, Sec. 4 of the law speaks onlyof a tax credit, not a refund.

The tax credit benefit granted to the establishments can bedeemed as their just compensation for private property taken bythe State for public use. The privilege enjoyed by the seniorcitizens does not come directly from the State, but rather fromthe private establishments concerned.

REMEDIAL LAWPAL vs FLIGHT ATTENDANTS AND STEWARDSASSOCIATION OF THE PHILIPPINES (FASAP)G.R. No. 143088, January 24, 2006

Facts:1. FASAP and Bhagwani filed a complaint for unfair labor

practice, illegal suspension and illegal dismissal against PALbefore the Labor Arbiter of the NLRC.

2. Ruling in favor of Bhagwani on the issues of unfair laborpractice and illegal dismissal, PAL was ordered to paydamages thereof.

3. NLRC later modified the decision by setting aside thefinding that PAL was guilty of ULP but affirmed the rest ofthe decision.

4. When PAL filed a petition for certiorari against the decisionwith the Court of Appeals, it was accompanied by a

Certification of Non-Forum Shopping executed by Cesar RLamberte and Susan Del Carmen, Vice-President HumanResources and Assistant Vice-President Cabin Services oPAL, respectively, who are not parties to the case.

5. The certification, however, was without proof that the twoaffiants had authority to sign in behalf of petitioners.

6. As a result, the Court of Appeals dismissed the case fofailure to show the authority of affiants to sign for PAL andfor failure of the other petitioners to join in the execution ofthe certification.

7. A motion for reconsideration was filed with a SecretarysCertificate attached evidencing that affiants Cesar RLamberte and Susan Del Carmen have been authorized byBoard Resolution No. 00-02-03 to initiate and/or cause to

be filed on behalf of PAL petitions and pleadings in allabor-related cases.

8. As to the other petitioners, it was argued that they aremere nominal parties so that their failure to execute thecertification does not justify dismissal of the petition.

9. Despite this submission, the Court of Appeals denied themotion for reconsideration.

10. Hence, this petition for review on certiorari under Rule 45.

Doctrine: The required certif ication of non-forumshopping must be valid at the time of filing of thepetition. An invalid certificate cannot be remediedPage 14 of 16


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Digests of Selected 2006-2007 Azcuna Decisionsby the subsequent submiss ion of a SecretarysCert i f icate that vests authori ty only after thepetition had been filed.Issue: Was the dismissal proper?Held: YES The power of a corporation to sue in any court is generally

lodged with the board of directors. The board, in turn, can

delegate the physical acts needed to sue, which may beperformed only by natural persons, to its attorneys-in-factby a board resolution, if not already authorized under thecorporate by-laws.

Thus, only individuals vested with authority by a valid boardresolution may sign the certificate of non-forum shopping inbehalf of a corporation. In addition, the Court has requiredthat proof of said authority must be attached. Failure toprovide a certificate of non-forum shopping is sufficientground to dismiss the petition. Likewise, the petition issubject to dismissal if a certification was submittedunaccompanied by proof of the signatorys authority.

In the case at bar, the petition filed had a certification ofnon-forum shopping executed by Lamberte and DelCarmen. The certification, however, was without proof ofauthority to sign. When a motion for reconsideration wasfiled, a Secretarys Certificate was submitted as proof thatthe board of directors of PAL had authorized the two toexecute the certificate. Nonetheless, the Court finds thatthis belated submission is an insufficient compliance withthe certification requirement.

Although the Court has allowed the reinstatement ofpetitions that were dismissed due to lack of proof ofauthority to sign the certification upon its subsequentsubmission, saying that this amounted to substantial

compliance on the rationale that the signatories, at the timeof execution of the certification, were in fact authorized tosign, albeit proof of their authority was lacking.

In the case at bar, the Secretarys Certificate submitted

reveals that the authority to cause the filing of the petitionwas granted on February 15, 2000. The petition, on theother hand, was filed on January 24, 2000 and wasdismissed by the Court of Appeals on January 31, 2000.This means that at the time the certification was signed,Lamberte and Del Carmen were not duly authorized by theBoard of Directors of PAL and, consequently, their signingand attestations were not in representation of PAL. Thiseffectively translates to a petition that was filed without acertification at all as none was issued by PAL, the principalparty to the case.

YEE v. BERNABEG.R. No. 141393, April 19, 2006Facts: Catherine Yee was charged with violation of RA6539(Anti-Carnapping Act of 1972) for allegedly stealing an Isuzu Elfchiller in Benguet. Yee filed a motion for reduction of bail bondand voluntary surrender with the RTC. RTC granted the motion.Thereafter, Yee filed a motion to conduct preliminaryreinvestigation, which was treated by the RTC as a motion for

preliminary investigation. Yee said that she was never informedof the prelim investigation and submitted a certification that thesubpoena for the proceedings had not been served upon herDespite admitting the fact that there was no notice to Yee, RTCdenied the motion to conduct preliminary reinvestigation (thiswas the challenged order in the case at bar). Motion oreconsideration also denied. Yee, before the Supreme Courtfiled this petition for review on certiorari under Rule 45 of theRules of Court assailing the RTC order.

Issue: Whether the proper action brought by Yee before theSupreme Court is a petition for review on certiorari under Rule45 or a special civil action for certiorari under Rule 65?

Held: Neither. Yee should have elevated the case to the Courtof Appeals and not directly to the Supreme Court.

The remedy taken by petitioner, that is, an appeal by certiorarunder Rule 45, brings up for review errors committed by thecourt in the exercise of its jurisdiction amounting to nothingmore than errors of judgment. This mode of appeal involves thereview of judgments, awards or final orders on the merits whereonly questions of law are raised. Only judgments or final order

that completely dispose of the case or a particular matter can bethe subject of such review. Appeal is not allowed againsinterlocutory orders which are merely provisional and decidesome point or matter but are not a final decision of the wholecontroversy

In the case at bar, the assailed orders denying petitionersmotion for preliminary reinvestigation are merely interlocutoryand may be questioned not at this stage of the proceedings burather as part of an appeal that may eventually be taken fromthe final judgment rendered in the case. The orders do notfinally dispose of the proceeding or of any independent offshooof it and there has been no adjudication on the merits nor anydefinitive pronouncement as to the guilt or innocence o

petitioner with respect to the crime with which she is charged

Special civil action for certiorari under Rule 65 of the Rules oCourt cannot also be brought by Yee. Petition does not allegegrave abuse of discretion tantamount to lack or excess o

jurisdiction, which is the ground for a petition for certiorarunder Rule 65 of the Rules of Court. An act of a court otribunal may only be considered as committed in grave abuse ofdiscretion when the same was performed in a capricious orwhimsical exercise of judgment which is equivalent to lack of

jurisdiction. The abuse of discretion must be so patent andgross as to amount to an evasion of positive duty or to a virtuarefusal to perform a duty enjoined by law or to act at all incontemplation of law, as where the power is exercised in an

arbitrary and despotic manner by reason of passion or personahostility. It is only upon showing that the court acted without orin excess of jurisdiction or with grave abuse of discretion thaan interlocutory order such as that involved in this case may beimpugned. Be that as it may, it must be emphasized that thispractice is applied only under certain exceptional circumstanceto prevent unnecessary delay in the administration of justiceand so as not to unduly burden the courts

Yee should have filed with the CA the petition, following the ruleon the hierarchy of courts. As a matter of policy, direct resort tothis Court will not be entertained unless the redress desiredcannot be obtained in the appropriate lower courts, and

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Digests of Selected 2006-2007 Azcuna Decisionsexceptional and compelling circumstances, such as in casesinvolving national interest and those of serious implications,

justify the availment of the extraordinary remedy of the writ ofcertiorari, calling for the exercise of its primary jurisdiction

Petition does not raise any special and important reason orexceptional and compelling circumstance that would justifydirect recourse to this Court. Consequently, the failure ofpetitioner to strictly adhere to the doctrine on the hierarchy of

courts constitutes sufficient cause for the dismissal of thepresent petition.

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