RULE 102

G.R. No. L-43195 August 23, 1935FELIPE GONZALES, petitioner-appellant, vs. FLORENTINO C. VIOLA and VALENTIN MANIQUIS, respondents-appellees.Abad Santos (Jose), J.:

FACTS:

This is an appeal from an order of the Court of First Instance of Bulacan, denying the petition for a writ of habeas corpus filed by the appellant. The order of denial was entered by the court below after due hearing, on the ground that the appellant was legally detained.

The facts which gave rise to this case are fully set forth in the order appealed from: that on January 18, 1935, at about 11:30 a.m., appellant was placed under arrest by order of the appellees and detained in the municipal jail of San Miguel, Province of Bulacan; that a few hours later a criminal complaint was filed by the appellee Maniquis against the appellant in the justice of the peace court of the aforesaid municipality; and that on the same day, at about 8 p.m., he was released on bail. When the hearing on the petition for a writ of habeas corpus was had in the court below the appellant was already out on bail.

ISSUE:

Whether or not the appellant, who is out on bail, is entitled to a writ of habeas corpus

HELD:

NO. In passing upon a petition for a writ of habeas corpus, a court of judge must first inquire whether the petitioner is restrained of his liberty. If he is not, the writ will be refused. Only where such restraint obtains is the court required to inquire into the cause of the detention, and if the alleged cause is found to be unlawful then the writ should be granted and the petitioner discharged.

The law is well settled that a person out on bail is not so restrained of his liberty as to be entitled to a writ of habeas corpus. The restraint of liberty which would justify the issuance of the writ must be more than a mere moral restraint; it must be actual or physical. "There is no very satisfactory definition to be found in the adjudged cases, of the character of the restraint or imprisonment suffered by a party applying for the writ of habeas corpus, which is necessary to sustain the writ. This can hardly be expected from the variety of restraints for which it is used to give relief. Confinement under civil and criminal process may be so relieved. Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under arbitrary custody by private individuals, as in a mad-house, as well as those under military control, may all become proper subjects of relief by the writ of habeas corpus. Obviously, the extent and character of the restraint which justifies the writ must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed. ... Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it."

Under the circumstances of the present case, the court below would have been justified in refusing the writ solely on the ground that the appellant was not, within the meaning of section 525 of the Code of Civil Procedure, deprived or restrained of his liberty; and upon that very ground the order appealed from is affirmed with costs against the appellant.

G.R. No. L-29169 August 19, 1968ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents.SANCHEZ, J.:

FACTS:

On November 14, 1962, an information was filed against nine accused, including herein petitioner Roger Chavez, alleging that they conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting a motor vehicle. The trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft.

Roger Chavez appealed to the Court of Appeals. However, the appeal was dismissed due to failure of Chavez’s counsel to file a brief. Motion for reconsideration was likewise denied.

On June 21, 1968, the Court of Appeals, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law.

ISSUES:

1. Whether or not the Chavez right against self-incrimination was violated during the trial of the case which resulted in his conviction.

2. Whether or not Chavez is entitled to be freed from imprisonment by the grant of the writ of habeas corpus

HELD:

1. YES. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question

requiring an incriminating answer is shot at him, and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." This rule may apply even to a co-defendant in a joint trial.

2. YES. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defect results in the absence or loss of jurisdiction and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant. Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. The writ may be granted upon a judgment already final. For, as explained in Johnson vs. Zerbst, the writ of habeas corpus as an extraordinary remedy must be liberally given effect so as to protect well a person whose liberty is at stake.

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... "

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled"People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist.

G.R. No. 89989 January 28, 1991EDEN D. PAREDES, petitioner, vs. SANDIGANBAYAN, respondent.GRIÑO-AQUINO, J.:

FACTS:

On January 21, 1976, Ceferino S. Paredes, Jr., then the Provincial Attorney of Agusan del Sur, applied for a free patent for Lot No. 3097-A, PLS-67, with an area of 1,391 square meters, located beside the Washington Highway in San Francisco, Agusan del Sur. On May 11, 1976, OCT No. P-8379 was issued to him.

Eight (8) years later, on June 27, 1984, the Sangguniang Bayan of the Municipality of San Francisco passed Resolution No. 40, requesting the Sangguniang Panlalawigan of Agusan del Sur to assist it in recovering Lot No. 3097 from Attorney Paredes because the land had been designated and reserved as a school site. The resolution was approved by the Sangguniang Panlalawigan.

On March 28,1985, Civil Case No. 512, for annulment of Attorney Paredes' title, was filed by the Republic in the Regional Trial Court, Branch 6, Agusan del Sur. During the pendency of said case, Teofilo Gelacio, former vice-mayor of San Francisco, Agusan del Sur, filed with the Tanodbayan on October 28, 1986, a criminal complaint charging Attorney Paredes with having violated Section 3(a) of the Anti-Graft & Corrupt Practices Act (R.A. 3019) because he allegedly used his office as Provincial Attorney to influence, persuade, and induce Armando Luison, Land Inspector of the District Land Office in Agusan del Sur, to favorably indorse his free patent application.

On February 23, 1987, the Tanodbayan (now Ombudsman) referred the case to Fiscal Ernesto Brocoy of Butuan City (TBP Case No. 86-03368) for preliminary investigation. Fiscal Brocoy issued summons to Attorney Paredes, Jr. to appear at the preliminary investigation of the case on August 29, 1987. However, the summons was served on November 19, 1987 upon the INP Station Commander of San Francisco, instead of Atty. Paredes. The summons did not reach Attorney Paredes. Nevertheless, Fiscal Brocoy proceeded to conduct the preliminary examination of the complainant and his witnesses. On August 29, 1988, the fiscal issued a resolution finding a prima facie case of violation of Section 3(a) of R.A. 3019 committed by the accused, which was approved by Tanodbayan Prosecutor Josephine Fernandez on June 26, 1989. Attorney Paredes filed a motion for reconsideration of the Tanodbayan's resolution, which was however denied.

In the local elections on January 18, 1988, Attorney Paredes was elected governor of Agusan del Sur.

On May 20, 1988, the Regional Trial Court of Agusan del Sur rendered a decision in Civil Case No. 512, annulling Governor Paredes' Free Patent No. (X-8) 1253 and his OCT No. P-8379 and restoring the land "to the mass of public domain".

On August 28, 1988, an information was filed against Governor Paredes in the Sandiganbayan and a warrant for his arrest, fixing bail of P20,000 for his provisional liberty, was issued on August 30, 1989 and served upon him. He refused to post bail in "protest against the injustice to him as Governor". Consequently, he was detained in the municipal jail of San Francisco.

On September 20, 1989, this petition for habeas corpus was filed by his wife, Mrs. Eden Paredes, against the Sandiganbayan alleging that the warrant for her husband's arrest was void because the preliminary investigation was void, and, that the crime charged in the information against him had already prescribed.

ISSUES:

1. Whether or not the arrest and detention of the petitioner after a preliminary investigation that was conducted by the Tanodbayan without notice to him, are invalid, and therefore constitute valid ground for the issuance of the writ of habeas corpus

2. Whether or not the crime charged against petitioner has already prescribed.

HELD:

1. NO. The petitioner alleges that the information against Governor Paredes is invalid because the preliminary investigation was invalid and the offense charged has already prescribed. Those circumstances do not constitute valid grounds for the issuance of a writ of habeas corpus. The absence of a preliminary investigation does not affect the court's jurisdiction over the case nor impair the validity of the information or otherwise render it defective. The remedy of the accused in such a case is to call the attention of the court to the lack of a preliminary investigation and demand, as a matter of right, that one be conducted. The court, instead of dismissing the information, should merely suspend the trial and order the fiscal to conduct a preliminary investigation. Thus did we rule in Ilagan vs.Enrile, 139 SCRA 349:

If the detained attorneys question their detention because of improper arrest, or that no preliminary investigation has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and/or the Information on grounds provided by the Rules, or to ask for an investigation / reinvestigation of the case. Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the Information filed against the accused. So it is explicitly provided for by Section 14, Rule 102 of the Rules of Court. . . . (Emphasis supplied).

2. NO. The defense of prescription of the offense charged in the information should be pleaded in the criminal action otherwise it would be deemed waived (U.S. vs. Serapio, 23 Phil. 584, 598 citing Aldeguer vs. Hoskyn, 2 Phil. 500; Domingo vs. Osorio, 7 Phil. 405; Maxilom vs. Tabotabo, 9 Phil. 390; Harty vs. Luna, 13 Phil. 31; Sunico vs. Ramirez, 14 Phil. 500). It is a proper ground for a motion to quash which should be filed before the arraignment of the accused (Secs. 1 & 2, Rule 117, 1985 Rules of Criminal Procedure; People vs. Castro, L-6407, July 29, 1954) for whether the crime may still be prosecuted and penalized should be determined in the criminal case not in a special proceeding of habeas corpus.

All questions which may arise in the orderly course of a criminal prosecution are to be determined by the court to whose jurisdiction the defendant has been subjected by the law, and the fact that a defendant has a good and sufficient defense to a criminal charge on which he is held will not entitle him to his discharge on habeas corpus. (Emphasis ours)

WHEREFORE, finding no merit in the petition, the same is hereby denied.

[G.R. No. L-44861. March 29, 1977.]ARTURO RAFAEL, SR., and ESPERANZA S. RAFAEL, petitioners, vs. HON. BENIGNO M. PUNO, Presiding Judge of Branch IV, Court of First Instance of Bulacan, Baliuag, Bulacan, and RICARDO A. CORPUS, respondents.FERNANDO, J p:

FACTS:On October 13, 1976, petitioners, residents of Manila, received an order from respondent Judge, requiring them to appear on October 14, 1976, at 1:30 p.m. before Branch IV of the Court of First Instance of Bulacan, sitting at Baliuag Bulacan, to produce the person of minor named Rommel Corpus, and to show cause why the Petition of Ricardo Corpus for custody of the said minor should not be granted. As no court session was held in the afternoon of that day due to respondent Judge being indisposed, the Clerk of Court reset the incident for October 21, 1976, also at 1:30 p.m. On that occasion, counsel for petitioner, Attorney Jose Ma. Abola entered his special appearance for the sole purpose of contesting the jurisdiction of the respondent Judge over the case and asked that he be given a period of twenty-four hours within which to file a written motion to dismiss based on lack of jurisdiction, with respondent Judge turning a deaf ear and instead dictating in open court an order for the arrest of the petitioners. A motion for reconsideration made then and there was unavailing.

Hence this petition anchored solidly on the crucial issue of lack of jurisdiction.

ISSUES:

1. Whether or not the respondent has the jurisdiction to enforce the writ of habeas corpus outside its judicial district

2. Whether or not the order of contempt issued by the respondent against petitioners due to latter’s failure to obey the writ was proper

HELD:

1. NO. Solicitor General Estelito P. Mendoza, was required by this Court, in a resolution of January 17, 1977, to comment on behalf of respondent Judge. In compliance therewith, he did so on March 3, 1977, stating at the outset that "he could not sustain the position taken by respondent Judge in Special Proceedings No. 723-B for habeas corpus subject of the present petition, for the reasons hereinbelow presented." On the decisive issue of jurisdiction, he first noted the applicable legal provisions and then proceeded as follows: "It is obvious from the aforequoted provisions of the law and rules that a writ of habeas corpus that may be issued by a Court of First Instance or a judge thereof is enforceable only within his judicial district and not outside it. In the case at bar, it appears from the petition for habeas corpus in Special Proceeding No. 723-B of the Court of First Instance of Bulacan, Baliuag Branch, that the respondents therein (petitioners herein) 'are residents of and with postal address at No. 2510 Int. 625, Tirso Cruz St., Gagalangin, Tondo, Manila;' and that as a matter of fact, the Notice of Hearing dated October 12, 1976 and Summons dated October 13, 1976 in said case, were likewise addressed to the same place. Since said respondents are thus residents of Manila, and, therefore, within the Sixth Judicial District (Sec. 49 of the Judiciary Act of 1948), then they are beyond the reach of the writ of habeas corpus that was issued against them by the respondent Court of First Instance of Bulacan, which is within the Fifth Judicial District (Sec. 49, id.)." In the petitory part of his Comment, the Solicitor General manifested the absence of any "objection to the allowance of the instant petition."

There is merit to the petition for prohibition. It is easily understandable then why the Solicitor General could not interpose any objection to the remedy sought being granted.

2. NO. A recent decision, National Sugar Workers Union v. La Carlota Sugar Central, restated the authoritative doctrine. This excerpt from the opinion therein rendered is relevant: "As far back as 1904 in Repide v. Peterson, the power of a court to punish a person for a refusal to comply with its order is conditioned on its possession of jurisdiction. Stated in other words, to quote from Chanco v. Madrilejos, 'the order must be in accordance with law.' Emphatically, it was asserted therein: 'The court has no authority to punish for disobedience or resistance of an order which was made without authority.' Shortly after liberation, in Angel Jose Realty Corporation v. Galao, it was again ruled: 'Before contempt could be committed, it is a prerequisite that the order issued by the court which was violated be a valid and legal one. Without a lawful order having been issued, no contempt of court could be committed.' There was a restatement thereof in the following words of former Chief Justice Bengzon in Estrada v. Santiago: 'It follows that these proceeding for contempt may not now continue, because the petitioners could not be punished for disobeying orders found to be without sufficient legal foundation.'"

There is pertinence to the following observation made in the Comment of the Solicitor General: "It is not disputed that petitioners did not produce the body of the minor child Rommel Rafael Corpus before the respondent court on October 14, 1976 although said Court had ordered them to do so. Had the trial court the jurisdiction to enforce the writ outside of the judicial district, such failure on the part of petitioners, it is respectfully submitted, could have been properly considered as a direct contempt which could be punished summarily by respondent court."

WHEREFORE, the writ of prohibition is granted, and respondent Judge ordered not to act further on Special Proceeding No. 723-B pending in his court except for the purpose of dismissing the same.

G.R. No. L-9700 February 28, 1962ONG SEE HANG, ETC. ET AL., petitioners-appellees, vs. THE HON. COMMISSIONER OF IMMIGRATION, and RICARDO PORTUGAL, respondents-appellants.BARRERA, J.:

FACTS:

Petitioners who are Chinese nationals are natives of Amoy, China. They left Amoy to live in Hongkong but with intentions to return to their native place. Their desire to return to Amoy was, however, frustrated when the Chinese communists took over the Chinese mainland.

While in Hongkong, they made a trip to Japan and on their return to Hongkong, they passed through the port of Manila where they arrived on November 3, 1952 on board the S. S. Cleveland. They were allowed by the Philippine Immigration authorities to disembark from the S.S. Cleveland for the purpose of taking another means of transportation to Hongkong, for which they were given up to November 28, 1952. Despite the period of time given them within which to leave the Philippines, and notwithstanding the availability of surface and air transportation to Hongkong, petitioners failed to comply with the condition imposed for their temporary stay in the Philippines. On November 29, 1952, warrants for their arrest were accordingly issued by the Immigration authorities, but the warrants were, subsequently, lifted upon representations made that petitioners would leave for Formosa, through the Chinese Embassy in the Philippines, but up to this date no action had been taken on the said application by the Chinese Nationalist government in Taipeh.

Petitioners having failed to leave the Philippines pursuant to the condition under which they were allowed to disembark from the S. S. Cleveland, the Immigration authorities, on April 20, 1953, issued warrants for their arrests.The Board of Commissioners of Immigration found that petitioners have violated the condition of their temporary stay and therefore rendered a decision ordering their deportation. Pursuant to the said decision, the First Deputy Commissioner of Immigration issued warrants of deportation against petitioners who are presently confined in the Detention Station of the Bureau of Immigration Engineer Island, Manila, under the custody of the said detention station. Petitioners Tan Chi Piek and Lee Kim Hua have been under detention since April 21, 1954; and the rest of the petitioner since April 12, 1954.

On May 11, 1954, Lim Giok Tim, Go Seng Kue, Yu Hue, and Ong Si, filed, on behalf of the petitioners, a request with the Bureau of Immigration that petitioners be released under bail pending their deportation. Said petition was, however, denied by the First Deputy Commissioner on May 29, 1954.

In its decision (dated June 11, 1954), the trial court denied petitioners' petition for habeas corpus, but allowed their provisional release on bail pending their actual deportation

Respondents-appellants claim that the trial court erred in granting bail to petitioners-appellees who were at the time under detention by the immigration authorities pending their deportation pursuant to orders of deportation issued against them.

ISSUES

1. Whether or not the petitioners Chinese nationals who are under a deportation proceeding have the right to be released on bail

2. Whether or not the trial court, by virtue of the habeas corpus filed therein, has jurisdiction to grant bail to the Chinese nationals

HELD:

1. NO. Aliens in deportation proceedings, as a rule, have no inherent right to bail and it has been held that a person arrested or detained cannot be released on bail, unless that right is granted expressly by law (Bengzon v. Ocampo, et al., 84 Phil. 611). Section 37 (9) (e) of the Philippine Immigration Act of 1940 (Comm. Act No. 613, as amended), provides that:

Any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration.

Note that this provision confers upon the Commissioner of Immigration the power and discretion to grant bail in deportation proceedings, but does not grant to aliens the right to be released on bail. The use of the word "may" in said provision indicates that the grant of bail is merely permissive and not mandatory or obligatory on the part of the Commissioner. The exercise of the power is wholly discretionary. The determination as to the propriety of allowing an alien, subject to deportation under the Immigration Act, to be released temporarily on bail, as well as the conditions thereof, falls within the exclusive jurisdiction of the Commissioner, and not in the courts of justice. The reason for this is that the courts do not administer immigration laws.

The right to bail guaranteed by the Constitution may not be invoked in favor of petitioners-appellees, considering that deportation proceedings do not constitute a criminal action and the order of deportation is not a punishment for a crime, it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside within our borders

2. NO. The case at bar is a deportation proceeding under the Philippine Immigration Act of 1940, which expressly vests in the Commissioner of Immigration the exclusive and full discretion to determine whether an alien subject to deportation should or should not be granted bail. And the fact that petitioners-appellees herein instituted the present habeas corpus proceeding before the Court of First Instance of Manila does not place them in the custody of said court, so as to deprive the Commissioner of Immigration of his supervision over them and of his discretionary power to grant bail. As we pointed out in Collector of Customs vs. Harvey, et al., 34 Phil. 503.

The writ of habeas corpus which was presented in the lower court did not put the relator into the custody of the court. The courts can not enlarge the rights of Chinese aliens simply because they have presented a writ of habeas corpus. If they are not entitled to bail during the pendency of the petition for the writ of habeas corpus, they are much less entitled to it after the court has denied their petition. And in the instant case, the lower court denied the petition for a writ of habeas corpus.

WHEREFORE, the decision appealed from is hereby reversed and set aside, insofar as it orders petitioners-appellees' release pending their actual deportation. In all other respects, said decision is affirmed, without costs.

REPUBLIC vs. HON. CLORIBEL, et al.G.R. No. L-20458 October 31, 1963

BENGZON, C.J.:

FACTS:

After protracted hearings before the Deportation Board, on charges properly filed, and after considering the testimony of witnesses examined and cross-examined before it, in connection with other evidence, the said Board found as a fact that Vicente Kho, an alien residing in the Philippines, had wilfully and fraudulently evaded payment of taxes of more than one million pesos; and so, in its report and recommendation to the President, it urged the deportation of Vicente Kho as an undesirable alien; and in 1957, the President issued a deportation order; but due apparently to a motion to reconsider, it was not carried out.

However, when a new President was elected and took possession, another deportation order was issued on August 22, 1962, and in compliance therewith, Vicente Kho was taken into custody.

Wherefore, Kho filed in the Manila Court of First Instance a petition for habeas corpus to test the legality of his arrest. During the pendency thereof, he asked for bail. Such petition having been granted over the objection of the Solicitor-General, this special civil action was immediately filed challenging the legality of the order granting bail. At the request of said officer, an injunction to prevent the deportee's release on bail was issued.

ISSUES:

1. Whether or not due process has been observed in the issuance of the deportation order2. Whether or not the court of first instance has power to release on bail in habeas corpus proceeding

HELD:

1. YES. In habeas corpus proceedings, to challenge a deportation order issued by the President upon recommendation of the Board, the real issue is whether or not due process has been observed. It is undeniable that charges against Vicente Kho had been filed before the Board; that hearings were held on said charges wherein he was afforded the opportunity to cross-examine the witnesses against him and present evidence to sustain his defense; that a written recommendation was made urging his deportation for willful and unlawful evasion of taxes. The recommendation is before us and upon a cursory reading thereof, we see no reason for criticism in so far as observance of due process is concerned.

2. NO. We have already held that when an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the courts of first instance have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it (Bengzon vs. Ocampo, 84 Phil. 611; Ong See Sang vs. Commissioner of Immigration, G.R. No. L-9700, February 28, 1962).

For the same reason, we must hold that respondent Kho, being held for deportation upon orders of the President, may not be released on bail.

The order granting bail must, consequently, be annulled with costs against the said alien deportee, and the injunction heretofore issued is made permanent.

REPUBLIC OF THE PHILIPPINES, for and in behalf of the Deportation Board, The Commissioner of Immigration and The Chief of Security Officer, Immigration, Detention, Engineer Island, Manila, petitioners, vs. HON. GAUDENCIO CLORIBEL, Judge of the Court of First Instance, Manila (Branch VI), MACARIO M. OFILADA, as Sheriff of Manila, and VICENTE KHO alias TAN SE CHIONG, respondents.

G.R. No. L-20458 October 31, 1963

BENGZON, C.J.:

FACTS:

After protracted hearings before the Deportation Board, on charges properly filed, and after considering the testimony of witnesses examined and cross-examined before it, in connection with other evidence, the said Board found as a fact that Vicente Kho, an alien residing in the Philippines, had wilfully and fraudulently evaded payment of taxes of more than one million pesos; and so, in its report and recommendation to the President, it urged the deportation of Vicente Kho as an undesirable alien; and in 1957, the President issued a deportation order; but due apparently to a motion to reconsider, it was not carried out.

However, when a new President was elected and took possession, another deportation order was issued on August 22, 1962, and in compliance therewith, Vicente Kho was taken into custody.

Wherefore, Kho filed in the Manila Court of First Instance a petition for habeas corpus to test the legality of his arrest. During the pendency thereof, he asked for bail. Such petition having been granted over the objection of the Solicitor-General, this special civil action was immediately filed challenging the legality of the order granting bail. At the request of said officer, an injunction to prevent the deportee's release on bail was issued.

ISSUES:

1. Whether or not due process has been observed in the issuance of the deportation order2. Whether or not the court of first instance has power to release an alien on bail in habeas corpus proceeding

HELD:

1. YES. In habeas corpus proceedings, to challenge a deportation order issued by the President upon recommendation of the Board, the real issue is whether or not due process has been observed. It is undeniable that charges against Vicente Kho had been filed before the Board; that hearings were held on said charges wherein he was afforded the opportunity to cross-examine the witnesses against him and present evidence to sustain his defense; that a written recommendation was made urging his deportation for willful and unlawful evasion of taxes. The recommendation is before us and upon a cursory reading thereof, we see no reason for criticism in so far as observance of due process is concerned.

2. NO. We have already held that when an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the courts of first instance have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it (Bengzon vs. Ocampo, 84 Phil. 611; Ong See Sang vs. Commissioner of Immigration, G.R. No. L-9700, February 28, 1962).

For the same reason, we must hold that respondent Kho, being held for deportation upon orders of the President, may not be released on bail.

The order granting bail must, consequently, be annulled with costs against the said alien deportee, and the injunction heretofore issued is made permanent.

RULE 108

[G.R. No. L-10226. February 14, 1958.]VIRGINIA ANSALDO, petitioner-appellant, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellee.MONTEMAYOR, J p:

FACTS:

This is an appeal from an order of the Court of First Instance of Manila, dated September 13, 1955, denying the petition of appellant Virginia Ansaldo to correct the birth certificate of her son, James A. Wang, under the provisions of Article 412 of the New Civil Code

The facts are simple and undisputed. On April 5, 1954, a baby was born to Virginia Ansaldo, a Filipina, and Henry H. Wang, a Chinese, both single. The following day, the parents of the baby gave to the Chief Nurse of the Sampaloc General Hospital, Manila, where the baby was born, the information and data about the child and its parents which are now made to appear on the child's birth certificate.

On February 10, 1956, the mother of the child, Virginia Ansaldo, filed with the Court of First Instance of Manila a "Petition for Correction of Birth Certificate", seeking to change the word "Chinese" under the child's name James A. Wang and opposite the word "Nationality", in the birth certificate, to word "Filipino". The petition was opposed by the Solicitor General in representation of the Republic of the Philippines, on the ground that entries in the civil register can be corrected only if the alleged mistakes are clerical in nature, not those that would affect the status or nationality or citizenship of the person involved, citing our ruling in Ty Kong Tin vs. Republic of the Philippines. Acting upon the petition and the opposition thereto, the lower court issued the order of September 13, 1955, denying the petition, citing the same case of Ty Kong Tin vs. Republic of the Philippines, supra.

ISSUE:

Whether or not a Petition for Correction of Birth Certificate is a proper proceeding to change the entry pertaining to the “Nationality” in the birth certificate of petitioner’s child

HELD:

NO. Without attempting to decide whether under the facts or data appearing on the birth certificate in question, the child, James A. Wang, is under the law, a Filipino citizen, following the nationality of its mother, we feel that in the public interest and as a matter of public policy, we should adhere to the ruling laid down by us in the case of Ty Kong Tin vs. Republic of the Philippines, supra.xxx In denying the petition by reversing the order of the trial court granting it, we held through Mr. Justice Bautista that:

"It is our opinion that the petition under consideration does not merely call for a correction of a clerical error. It involves a matter which concerns the citizenship not only of petitioner but of his children. It is therefore an important controversial matter which can and should only be threshed out in an appropriate action. The philosophy behind this requirement lies in the fact that 'the books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained' (Article 410, new Civil Code), and if the entries in the civil register could be corrected or changed through a mere summary proceeding, and not through an appropriate action wherein all parties who may be

affected by the entries are notified or represented, we would set wide open the door to fraud or other mischief the consequence of which might be detrimental and far reaching."

For the information of the parties concerned, and for the guidance of the public in general, we may venture the opinion that the clerical errors which might be corrected through judicial sanction under Article 412 of the New Civil Code, would be those harmless and innocuous changes, such as, correction of a name that is clearly misspelled, occupation of the parents, etc.; but for changes involving the civil status of the parents, their nationality or citizenship, those are grave and important matters which may have a bearing and effect on the citizenship and nationality not only of said parents, but of the offsprings, and to seek said changes, it is necessary to file a proper suit wherein not only the State, but also all parties concerned and affected should be made parties defendants or respondents, and evidence should be submitted, either to support the allegations of the petition or complaint, or also to disprove the same so that any order or decision in the case may be made with due process of law and on the basis of facts proven. Then and only then may the change or changes be made in the entry in a civil register that will affect or even determine conclusively the citizenship or nationality of a person therein involved.

In view of the foregoing, the order appealed from is hereby affirmed.

G.R. No. L-25168 January 31, 1981IN THE MATTER FOR THE CORRECTION OF AN ENTRY IN THE CIVIL REGISTER OF THE MUNICIPALITY OF JOLO AFFECTING THE CERTIFICATE OF LIVE BIRTH OF MINOR BIO HEONG WING. KUMALA SALIM WING, petitioner-appellee, vs.AHMAD ABUBAKAR, Civil Registrar of the Municipality of Jolo; THE COMMISSIONER OF IMMIGRATION, MANILA, and THE REPUBLIC OF THE PHILIPPINES, respondents-appellants.FERNANDO, C.J.:

FACTS:

Kumala Salim Wing, petitioner herein, a Muslim woman and Filipino citizen, married Wing Siong, a Chinese citizen and resident of Jolo, Sulu, sometime in 1955. The couple, married for almost ten (10) years, begot six (6) children. The third child, Bio Heong, whose sex is sought to be corrected in this petition, was born in Tulay, Jolo, Sulu, on November 20, 1958. The couple had all their children registered with the Immigration Office as aliens but that in the case of Bio Heong, their third female child, a mistake as to her sex was committed in the issuance of the child's certificate of live birth.

The couple had not discovered the mistake because both had no formal schooling and does not read nor understand English. However, when the couple wanted to register their child, Bio Heong, with the Immigration Office in Jolo, Sulu, sometime before 1960, the error or mistake in the child's certificate of live birth was discovered by the Immigration Office. Despite the discovery, the couple had the child, Bio Heong, registered in the Immigration Office with the data used as appearing in said certificate of live birth without correction. However, the Immigration Officer advised the couple to see a lawyer to have the mistake corrected.

Kumala Salim Wing filed a petition to correct the entry in the birth certificate of her child Bio Heng. The lower court rendered the appealed decision ordering the "Civil Registrar of Jolo, Sulu, Philippines, to make the necessary correction in the certificate of live birth of minor Bio Heong Wing by changing the letter "M" appearing on the space for sex 'F' to mean female which is the true sex of said minor child .

A reversal of a lower court decision is sought by appellant Civil Registrar on the allegation that a grave procedural defect was committed. It is contended that to justify the correction of such an entry in the Civil registry, there must be an adversary proceeding, not one summary in nature.

ISSUE:

Whether or not the court may order the correction in the certificate of live birth of minor Bio Heong Wing by changing the letter "M" appearing on the space for sex 'F' to mean female which is the true sex of said minor child

HELD:

YES. The persuasive quality of the decision is thus apparent. No effort was spared to ascertain the truth of the matter. What is clearly discernible is that an error was committed and all that the Court did in accordance with law was to have it corrected. It would be unwarranted under the circumstances, to reverse such a decision. It must be affirmed.

Its conformity to the settled rule first set forth in the leading case of Ty Kong Tin v. Republic of the Philippines, a 1954 decision, is quite clear. The matter therein involved was the citizenship not only of the petitioner but of his children. This Court, through Justice Bautista Angelo, in interpreting Article 412 of the Civil Code, held: "After a mature deliberation, the opinion was reached that what was contemplated

therein are mere corrections of mistakes that are clerical in nature and not those which may affect the civil status or the nationality or citizenship of the persons involved. If the purpose of the petition is merely to correct a clerical error then the court may issue an order in order that the error or mistake may be corrected. It refers to a substantial change, which affects the status or citizenship of a party, the matter should be threshed out in a proper action depending upon the nature of the issue involved. By the time Chug Siu v. Local Civil Registrar was decided, it had been reiterated in at least twelve cases, starting from Ansaldo v. Republic and ending with Tan v. Republic. One of the latest cases, a 1977 decision, Republic v. Castaneda, Jr., reaffirmed such a doctrine, citing eight other decisions starting from Dy Oliva v. Republic and ending with Republic v. Amores.

Nor would it be the first time that a procedure of this character did suffice for the correction of an error in the records of the Civil Registrar. In Malicden v. Republic this Court held that testimonial evidence may override an erroneous entry. Thereafter, in Alisoso v. Lastimoso this Court ruled that an unauthorized false entry may be cancelled by the Court through an action of this nature. Matias v. Republic, the opinion being penned by then Acting Chief Justice J.B.L Reyes, is even more in point. Thus: "Granting that the supplying of a name that was left blank in the original recording of the birth does not constitute, as contended by the Solicitor General, a rectification of a mere clerical error, it is well to observe that the doctrine of the case of Ty Kong Tin v. Republic, 94 Phil. 321, and subsequent adjudications predicated thereon, forbade only the entering of material corrections or amendments in the record of birth by virtue of a judgment in a summary action against the Civil Registrar. In the case of petitioner herein, however, the proceedings were not summary, considering the publication of the petition made by order of the court in order to give notice to any person that might be interested, including direct service on the Solicitor General himself.

WHEREFORE, the appealed decision is affirmed. No costs.

G.R. No. L-27735 December 26, 1984LAMBERTO TAN, petitioner-appellant, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellee.CUEVAS, J.:

FACTS:

On November 16, 1965, petitioner-appellant Tan filed with the then Court of First Instance of Manila a petition for correction of entry in his certificate of birth, alleging the following:

1. That petitioner is a Filipino, of legal age, married and a resident of No. 86 Aramismis Street, Project 7, Quezon City;

2. That he was born in the City of Manila on September 16, 1933, his father being Lope Sta. Maria Tan and his mother being Marcelina Serrano;

3. That at petitioner's birth, his mother was attended by Saturnina Luarca, a midwife, who registered petitioner's birth with the Local Civil Registrar of Manila;

4. That on registering petitioner's birth, said Saturnina Luarca, believing that petitioner's father was a Chinese citizen so gave out said information as a consequence of which it now appears in the records of the Local Civil Registry and on petitioner's Birth Certificate that he is a Chinese citizen as his father is also a Chinese citizen; and

5. That the said citizenship of petitioner and his father as given out by the said Saturnine Luarca and appearing in petitioner's Birth Certificate is an error the truth being that petitioner and his parents are all Philippine citizens.

In his petition, the petitioner prayed that after due hearing and publication, to order the Local Civil Registrar of Manila to correct the entries appearing in petitioner's Birth Certificate, Register No. 1375-133, referring to him and his father as Chinese citizens to "Filipino" or Philippine citizens.

On November 22, 1965, the trial court issued an Order setting the case for hearing pursuant to Section 4, Rule 108 of the New Rules of Court and directing the publication of the Order in a newspaper of general circulation once a week for three (3) consecutive weeks.

The court a quo denied the petition and dismissed the case ruling that "it has no authority under Article 412 of the Civil Code, upon which the present petition is based, to order the correction of the same, which is not a mere clerical error. Petitioner's two (2) motions for reconsideration of the assailed decision were likewise denied. Hence, this appeal by way of certiorari.

ISSUES:

1. Whether or not the court may order the correction of entries appearing in petitioner's Birth Certificate, referring to him and his father as Chinese citizens to "Filipino" or Philippine citizens

2. Whether or not substantial errors in the entries appearing in the birth certificate may be corrected following the procedure under Rule 108 of the Rules of Court

HELD:

1. NO. There can be no question that the alleged errors sought to be corrected in the instant case are not merely clinical, harmless or innocuous in nature. Rather, they are substantial and/or controversial since they involve a change of citizenship. Correction therefore cannot be effected in a summary proceeding but through an appropriate action where all the parties adversely affected thereby must be notified or represented. As held in the case of Ansaldo vs. Republic which doctrine was reechoed in Oliva vs. Republic and later reiterated in Republic vs. Medina.

... the clerical errors which might be corrected through judicial sanction under Article 412 of the New Civil Code, would be those harmless and innocuous changes, such as, correction of a name that is clearly misspelled, occupation of the parents, etc.; but for changes involving the civil status of the parents, their nationality or citizenship, those are grave and important matters which may have a bearing and effect on the citizenship and nationality not only of said parents, but of the offsprings, and to seek said changes, it is necessary to file a proper suit wherein not only the state, but also all parties concerned and affected should be made parties defendants or respondents and evidence should be submitted, either to support the allegations of the petition or complaint, or also to disprove the same so that any order or decision in the case may be made with due process of law and on the basis of facts proven Then and only then may the change or changes be made in the entry in a civil register that win affect or even determine conclusively the citizenship or nationality of a person therein involved. (Emphasis supplied)

2. NO. While admitting that the correction sought and prayed for is substantial and/or controversial, appellant however contends that the procedure undertaken by him is not summary in character but a contentious one. And this is so because his petition was filed not merely pursuant to Article 412 of the Civil Code but under Rule 108 of the Revised Rules of Court thereby observing all the formalities prescribed and procedure laid down by the said Rule.

Appellant's aforesaid submission fails to persuade Us. Rule 108 of the Revised Rules of Court is merely an implementing rule of procedure on matters dealt with and covered by Article 412 of the Civil Code and this has been made succinctly clear in the case of Chua vs. Republic, 38 SCRA 411 which dictum has been reiterated in the more recent case of Rosario vs. Castillo, et al., G.R. No. L-31712, September 28, 1984 wherein it was held that —

From the time the New Civil Code took effect on August 30, 1950, until the promulgation of the Revised Rules of Court on January 1, 1964, there was no law nor rule of court prescribing the procedure to secure judicial authorization to effect the desired innocuous rectifications or alterations in the civil registrar pursuant to Art. 412 of the New Civil Code. Rule 108 of the Revised Rules of Court now provides for such a procedure which should be limited solely to the implementation of Art. 412, the substantive law on the matter of correcting entries in the civil register. Rule 108, like all other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13 of Art. VII I of the Constitution, which directs that such niles of court 'shall not diminish or increase or modify substantive rights.' If Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation or legitimacy of marriage, said Rule 108 would thereby become unconstitutional for it would be increasing or modifying substantive rights, which changes are not authorized under article 412 of the New Civil Code. (Emphasis supplied)

IN VIEW OF THE FOREGOING CONSIDERATIONS, and finding the instant appeal to be without merit, the same is hereby DISMISSED.

G.R. No. L-49703 July 31, 1987REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. NAPOLEON R. FLOJO, as Presiding Judge of Court of First Instance of Cagayan, Second Branch, and INOCENCIO P. CARAG, respondents. PADILLA, J.:

FACTS:

Review on certiorari of the Order issued by the respondent judge on 27 October 1978 in Sp. Proc. No. 11-401 of the Court of First Instance of Cagayan, entitled: "In the matter of the Petition to Correct the Entry in the Civil Registry of Aparri, Cagayan: Inocencio P. Carag, petitioner versus The Local Civil Registrar of Aparri, Cagayan, respondent", which directed the respondent therein to change the entry in the register of birth of Inocencio Carag Tan from "Chinese" to "Filipino".

It appears that the herein private respondent Inocencio P. Carag filed a verified petition with the Court of First Instance of Cagayan, docketed therein as Sp. Proc. No. II-401, to correct an entry in his register of birth wherein he was erroneously registered as a "Chinese" instead of a Filipino citizen. Named respondent was the Local Registrar of Aparri, Cagayan.

After hearing, the respondent Judge found, and so ruled, that Inocencio P. Carag is a Filipino citizen so that the necessary correction should be made in his record of birth.

The Republic of the Philippines now questions the Order on the ground that it is "contrary to the well-settled doctrine that the only mistakes in the entries in the Civil Register which can be corrected under Art. 412 of the Civil Code and Rule 108 of the Revised Rules of Court are those that are merely clerical in nature and not those which affect the civil status or citizenship of the person involved.1avvphi1 In support thereof, the petitioner cites the ruling of the Court in the cases of Ty Kong Tin vs. Republic, Chua Wee vs. Republic, and Republic vs. Castaneda.

ISSUE:

Whether or not the court erred in directing the respondent to change the entry in the register of birth of Inocencio Carag Tan from "Chinese" to "Filipino", considering that the entry sought to be changed is not merely a clerical error

HELD :

NO. While the Court has, indeed, previously ruled that the changes or corrections authorized under Art. 412 of the Civil Code, which envisions a summary procedure, relate only to harmless and innocuous alterations, such as misspellings or errors that are visible to the eyes or obvious to the understanding and that changes in the citizenship of a person or his civil status are substantial as well as controversial, which can only be established in appropriate adversary proceedings, the rule has been relaxed. In Republic vs. Valencia the Court said:

It is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used This Court adheres to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. As a matter of fact, the opposition of the Solicitor General. dated February

20, 1970 while questioning the use of Article 412 of the Civil Code in relation to Rule 108 of the Revised Rules of Court admits that "the entries sought to be corrected should be threshed out in an appropriate proceeding."

What is meant by "appropriate adversary proceeding?" Black's Law Dictionary defines adversary proceeding as follows:

One having opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. Excludes an adoption proceeding. (Platt v. Magagnini, 187, p. 716, 718, 110 Was. 39).

We are of the opinion that the petition filed by the respondent in the lower court by way of a special proceeding for cancellation and/or correction of entries in the civil register with the requisite notice and publication and the recorded proceedings that actually took place thereafter could very well be regarded as that proper suit or appropriate action.

This ruling was reiterated in Antonio Chiao Ben Lim vs. Hon. Mariano A. Zosa.

In the instant case, there is no doubt or question that the proceeding conducted in the lower court was an adversary proceeding and "appropriate" in that "all relevant facts have been fully and properly developed, where the opposing counsel have been given opportunity to demolish the opposite party's case, and where the evidence has been thoroughly weighed and considered." The questioned Order states in part:

After the required publication of the order of Notice of hearing dated August 22, 1978 in the Cagayan Valley Weekly Journal, Exhibits "B", "B-l" and "B-2", has been complied with and notice to the Solicitor General, petitioner adduced evidence on October 17, 1978. No written opposition was interposed by the respondent but at the hearing, Assistant Provincial Fiscal Arsenio Gonzales appeared for and in behalf of the Solicitor General.7

In view of the foregoing, the respondent judge had jurisdiction to order the correction of the subject defective entry in the civil register.

WHEREFORE, the petition is denied for lack of merit.

RULE 103

G.R. No. L-32600 February 26, 1988REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. FELICIANO BELMONTE, Judge of the Court of First Instance of Baguio and Benguet and ANITA PO alias VERONICA PAO, assisted by her mother HELEN POA, respondents.GANCAYCO, J.:

FACTS:

The record of the case discloses that on August 28, 1968, the herein private respondent Anita Po alias Veronica Pao, a resident of Baguio City, filed with the then Court of First Instance of Baguio and Benguet a Petition for the change other name from Anita Po to Veronica Pao. For this purpose, she also sought court permission to have her birth records corrected in that her father's name appearing as PO YU be corrected to PAO YU and her mother's name recorded as PAKIAT CHAN be changed to HELEN CHAN. At the time the litigation was commenced, the petitioner was a 16-year old minor. Thus, she was assisted in the case by her mother. The suit was docketed as Special Proceeding Case No. 642.

The petitioner alleged before the trial court that the maiden name of her mother is Helen Chan and that the given name Pakiat written on her birth certificate is actually the given name of her maternal grandmother. The petitioner also asserted that the name of her father is Pao Yu and not Po Yu as erroneously written in her birth certificate and as such her real surname is Pao. She assigns these alleged errors to the common misunderstanding of Chinese names. The petitioner also averred that she had been baptized by a Catholic priest and that she was christened as Veronica Pao, the first being her Christian given name and the latter being the correct spelling of her surname; that since her childhood up to the present, she had always been known and referred to as Veronica Pao and not Anita Po.

In a Decision dated July 24,1969, the trial court, with respondent Judge Feliciano Belmonte presiding therein, ruled in favor of the petitioner. The petitioner was allowed to change her name from Anita Po to Veronica Pao. The court also allowed the correction of the names of her parents as prayed for in the Petition in the registry of birth. The Local Civil Registrar of La Trinidad Benguet was ordered to implement the corresponding corrections.

On behalf of the Republic of the Philippines, the Office of the Solicitor General elevated the case to this Court by way of the instant Petition.

ISSUE:

Whether or not a petition for a change of name and the correction of certain entries in the civil registry can be joined in the same proceeding

HELD:

NO. An examination of petitioner’s allegations reveal that her claim to the supposed correct name of Veronica Pao is predicated on the assumption that the correct name other father is Pao Yu and not Po Yu as recited in her own birth certificate. The assumption is baseless, absent any proof that the name other father in her birth certificate was entered erroneously. As correctly observed by the Office of the Solicitor General, until the name of her father is shown to have been registered in her birth certificate erroneously, there is no justification for allowing the petitioner to use the surname Pao. The corrections sought by the petitioner involve the very Identity of her parents. Surely, the propriety of such corrections

should first be determined in a different proceeding more adversary in character than the summary case instituted by the petitioner with the trial court. Aside from the change of her name, the petitioner seeks a correction of entries in the civil registry for the benefit of her parents. This she may not do through a summary proceeding. The summary procedure for correction of the civil register under Rule 108 is confined to innocuous or clerical errors and not to a material change in the spelling of a surname as prayed for by the petitioner. A clerical error must be apparent on the face of the record and should be capable of being corrected by reference to the record alone. The petitioner seeks more than just the correction of a clerical error.

Moreover, under Section 3 of Rule 108, when cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby should be made parties to the proceeding. An inspection of all the pleadings filed by the petitioner with the trial court shows that the local civil registrar concerned was never made a party to the proceeding. Said civil registrar being an indispensable party, a final determination of the case cannot be made.

The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in the civil registry are separate and distinct. They may not be substituted one for the other for the sole purpose of expediency to hold otherwise would render nugatory the provisions of the Rules of Court allowing the change of one's name or the correction of entries in the civil registry only upon meritorious grounds. If both reliefs are to be sought in the same proceedings all the requirements of Rules 103 and 108 must be complied with.

WHEREFORE, in view of the foregoing, the Decision of the Court of First Instance of Baguio and Benguet in Special Proceeding Case No. 642 dated July 24,1969 is hereby SET ASIDE and declared to be without force or effect. The entries in the local civil registry of La Trinidad, Benguet pertaining to the petitioner Anita Po and her parents Po Yu and Pakiat Chan stand as they were before such Decision.

G.R. No. L-26198 October 16, 1970IN RE: PETITION FOR CHANGE OF SURNAMES OF MINORS: CESAR UN TO CESAR TIU, NORBERTO ON TO NORBERTO TIU, URSULINA ON TO URSULINA TIU, SUSANA RENDORA, petitioner, vs. REPUBLIC OF THE PHILIPPINES, oppositor.DIZON, J.:.

FACTS:

Under date of August 7, 1965, Susana Rendora filed below a petition for authority to change the surname of her minor children known is Cesar UN, Norberto ON and Ursulina ON, to TIU — the surname of their father.

Thereafter, the lower court issued an order setting the hearing of the petition on September 21, 1965, the same living been published in accordance with law. The Republic of the Philippines, through the City Fiscal of Ormoc City, filed an opposition to the petition.

The evidence shows that Cesar UN, Norberto ON and Ursulina ON are the children of petitioner Susana Rendora with TIU HONG a Chinese citizen; that TIU HONG and said children were registered with the Bureau of Immigration; that the surnames ON and UN carried by the children are the same; that TIU HONG is commonly known in the Chinese community of Ormoc City as YUTIAN ON; that petitioner learned of the error in recording the surname of her children only when they started going to school. Upon the said evidence, the lower court subsequently rendered a judgment in favor of petitioner Susana Rendora.

The State appealed and prays for the reversal of the above decision and for the dismissal of the petition, claiming that the lower court had not acquired jurisdiction to hear the petition and that petitioners had failed to prove a proper and reasonable cause to justify the change of their respective surnames.

ISSUE:

Whether or not petitioners had failed to prove a proper and reasonable cause to justify the change of their respective surnames

HELD:

YES. The record discloses that the birth certificate of Cesar UN gives his name as Cesar ON HIA TIAN and that of his father as ON HIA TIAN (Exhibit "H"); that the birth certificate of Norberto UN records his name as Norberto TIAN and that of his father as ON HIO TIAN (Exhibit "J"), while the birth certificate of Ursulina ON records the name of her father as YUTIAN UN (Exhibit "I").

It is to be borne in mind in this connection that, for legal purposes, the true name of a person is that given him in the Civil Register, and that for the purpose of a petition such as the one filed by petitioners, what is or may be chanced is their true or official name as recorded in the Civil Register. Consequently, the publication required by law, must give that true or official name of the petitioners to enable the State to undertake the proper investigation regarding the truth of the allegations made in their petition. As the order published in connection with the present proceeding did not give the true or correct surnames of the petitioners, said publication was rendered ineffective in law.

Testifying in support of the petition, Susana Rendora, mother of the minors whose surnames are sought to be changed, testified that she wants them "to bear the family name of TIU but then proceeded to answer the question of what was the family name of her husband by saying that it was TIU HONG.

Moreover, the alien certificate of her husband shows that he was also known under an alias, to wit, TIU SONG PIN. Moreover, while Susana Rendora claims to be married to TIU HONG, no marriage contract was presented as part of the evidence, nor did her husband testify. Neither was evidence presented that TIU HONG was authorized to use the alias TIU SONG PIN, or that he is the same person as the one whose name was given in the birth certificates of their children as YUTIAN UN, ON HIO TIAN and ON HIA TIAN.

Upon the foregoing, we are of the opinion and so hold, that the evidence of record is utterly insufficient to support the decision appealed from.

WHEREFORE, the decision appealed from is reversed and the petition filed below is hereby dismissed, without prejudice.

G.R. No. L-20018 April 30, 1966CHIU HAP CHIU, petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellantBAUTISTA ANGELO, J.:

FACTS:

Chiu Hap Chiu seeks to change his name to Lo Hap Chiu in a petition filed before the Court of First Instance of Davao. He testified that he was 30 years old, single, a doctor of medicine, and a resident of Davao City; that the name given him at birth was Lo Hap Chiu; that during his school days, or from elementary school to college, he was called by his classmates as Lo Hap Chiu for which reason he desires to have said name adopted instead of Chiu Hap Chiu to avoid confusion in the use of his name; and that the name given him in his alien certificate of registration is Chiu Hap Chiu.

After the reception of the evidence, the court a quo granted the petition.

The government opposed the petition in view of its failure to find sufficient justification for the change of name desired by petitioner.

ISSUE:

Whether or not the petitioner failed to show sufficient justification for the change of name desired by him, which would warrant the setting aside of the order of the court granting the petition

HELD:

YES. This Court has already had occasion to express the view that the State has an interest in the names borne by individuals and entitles for purpose of identification and that a change of name is a privilege and not a matter of right. So that before a person can be authorized to change the name given him either in his certificate of birth or in the civil registry he must show proper or reasonable cause or any compelling reason which may justify such change. Otherwise, the request should be denied. The following may be considered among others, as proper and reasonable causes that may warrant the grant of a petition for change of name: (1) when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a change of status, such as when a natural child is acknowledged or legitimized; and (3) when the change is necessary to avoid confusion.

Petitioner has not shown any proper or compelling reason that may justify the request for change of name other than his desire to use the name Lo Hap Chin on the alleged reason that that is the name given him in his birth certificate and in the schools he attended, but his claim was not satisfactorily proven, for aside from his own testimony and a photostatic copy of a certification issued in his favor as Doctor of Medicine by the University of Santo Tomas wherein it appears that his name is Lo Hap Chiu, there is nothing in the record to show that he used said name from grade school to college for he failed to present any documentary evidence to prove it. The truth is that he was registered in the Bureau of Immigration as Chiu Hap Chiu and in all the clearances secured by him from said Bureau the name used therein was Chiu Hap Chiu thereby indicating that he considered himself as such as regards the public. He has not shown that he will be prejudiced by the use of his true and official name, and as a matter of fact he was referred to as Dr. Chiu Hap Chiu in his clearance from the Court of First Instance of Davao. Since the State has an interest in the name borne by an individual, especially an alien, and the latter's identity as a rule is established by the name appearing in his alien certificate of registration, we find no plausible reason for authorizing the change of name desired by petitioner.

Wherefore, the order appealed from is set aside.

G.R. No. L-18284 April 30, 1963IN THE MATTER OF THE ADOPTION OF THE MINOR, ANA ISABEL HENRIETTE ANTONIA CONCEPCION GEORGIANA, ISABEL VALDES JOHNSTON, petitioner-appellant, vs.REPUBLIC OF THE PHILIPPINES, oppositor-appellee.LABRADOR, J.:

FACTS:

On June 24, 1960, petitioner-appellant Isabel Valdes Johnston, filed a petition for the adoption of one Ana Isabel Henriette Antonio Concepcion Georgiana, 2 years and 10 months old, then under the custody of the Hospicio de San Jose, an orphanage situated in the city of Manila. The petition shows that petitioner-appellant is 48 years old, married to Raymond Arthur Johnston, Filipino, residing at 12 San Lorenzo Drive, Makati, Rizal; that the couple are childless; that the consent of the Mother Superior of the orphanage and the husband of petitioner-appellant was obtained.

Notice of the hearing of the petition was issued and duly published as required by law, and after hearing, the lower court rendered a decision granting the petition, with the following dispositive part:

IN VIEW OF THE FOREGOING, the petition is granted declaring the child Ana Isabel Henriette Antonia Concepcion Georgiana freed from all legal obligations and obedience and maintenance with respect to its natural parents and is, to all legal intents and purposes, the child of the petitioner, with the corresponding change of surname VALDES, which is the surname of petitioner.

The petitioner-appellant filed a motion on October 24, 1960, praying that the surname given to the minor be "Valdes Johnston", instead of "Valdes" only, but this motion was denied by the lower court in its order of October 31, 1960. Hence, this appeal.

ISSUE:

Whether or not the order of the lower court prescribing the use by the adopted child of the surname “Valdes”, petitioner’s maiden surname, instead of “Valdes Johnston”, petitioner’s surname acquired by virtue of marriage, was proper

HELD:

YES. We agree with the decision of the lower court authorizing or prescribing the use of the surname Valdes by the adopted child. The provision of law (Art. 341, par. 4, Civil Code) which entitles the adopted minor to the use of the adopter's surname, refers to the adopter's own surname and not to her surname acquired by virtue of marriage. Petitioner-appellant's real surname is Valdes and not Johnston, and as she made the adoption singly without the concurrence of her husband, and not as a married woman, her name as adopter was her maiden name. The adoption created a personal relationship between the adopter and the adopted, and the consent of Raymond Johnston, Isabel Valdes' husband, to the adoption by her individually, did not have the effect of making him an adopting father, so as to entitle the child to the use of Johnston's own surname.

Since adoption gives the person adopted the same rights and duties as if he were a legitimate child of the adopter (Art. 341, par. 1, Civil Code), much confusion would indeed result, as correctly pointed out by the Solicitor General, if the minor child herein were allowed to use the surname of the spouse who did not join in the adoption.

For one thing, to allow the minor to adopt the surname of the husband of the adopter, would mislead the public into believing that he had also been adopted by the husband, which is not the case. And when later, questions of successional rights arise, the husband's consent to the adoption might be presented to prove that he had actually joined in the adoption.

It is to forestall befuddling situations pointed out above and other possible confusing situations that may arise in the future, that this Court is inclined to apply strictly the provision of the Civil Code to the effect that an adopted child use the surname of the adopter himself or herself, and not that which is acquired by marriage.

FOR ALL THE FOREGOING, the order of the court below prescribing the use of the surname "Valdes" by the adopted minor Ana Isabel Henriette Antonio Concepcion Georgiana, is hereby affirmed.

G.R. No. L-35605 October 11, 1984REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HONORABLE JUDGE OF BRANCH III OF THE COURT OF FIRST INSTANCE OF CEBU and ANDREW BARRETTO, respondents.MAKASIAR, J.:

FACTS

On February 2l, 1967, herein respondent Andrew Barretto filed Special Proceeding No. 2742-R with the Court of First Instance of Cebu for the change of his name from Andrew Barretto to Andrew Velez, alleging as reason for his petition that Velez is the surname of his stepfather with whom he was living.

On March 16, 1967, the trial court issued an order setting the petition for hearing and directing the publication of said order. Petitioner Republic of the Philippines filed an opposition to the petition, alleging that the proposed change of name is unwarranted in the absence of any showing that the present surname of respondent Andrew Barretto is ridiculous and/or tainted with dishonor. It was also contended that the ground given for the proposed change of name does not constitute proper and reasonable justification for the grant of the petition.

Petitioner Republic of the Philippines also filed a motion to dismiss on September 8, 1967, alleging mainly that the title and caption of the petition for change of name and the order of publication failed to state and include the proposed new name of the petitioner Andrew Barretto. It was also alleged in said motion that the petitioner had no legal capacity to file the petition as he was then a minor. Respondent Andrew Barretto filed an opposition to the republic's motion to dismiss. On October 5, 1967, the trial court issued an order denying the republic's motion to dismiss.

On December 28, 1967, respondent Barretto filed a motion to declare the Republic or the Solicitor General in default. Petitioner Republic filed a motion to strike out from the record the aforementioned motion to declare the Republic in default, alleging that the Republic had already filed its opposition to the petition for change of name. The trial court issued an order denying the motion to declare the Republic in default.

The trial court rendered a decision granting the petition of respondent Andrew Barretto to change his surname to Velez on March 4, 1968. Republic filed the present petition for review on certiorari with this Honorable Court on November 4, 1972.

ISSUES:

1. Whether or not the respondent Court did not acquire jurisdiction over the petition for change of name because: i) the caption and title thereof did not include the name sought to be adopted by petitioner, and ii) defective publication thereof

2. Whether or not the respondent Court erred in not dismissing the present petition for failure of petitioner to show proper and reasonable cause or justification for the change of name sought

HELD:

1. YES. The petition for change of name and the order of publication and hearing thereon must contain in its title or caption [a] the applicant's real name, [b] his aliases and other names, if any, [c] and the name he seeks to adopt; and this notwithstanding that the body of the petition or of the order includes also the cited information. Finally, there must be effective publication, i.e., such publication reciting, among

others: [a] the name or names of the applicant, [b] the cause for which the change of name is sought, and [c] the new name asked for.

Failure to comply with the aforementioned requirements results in the lower court acquiring no jurisdiction to hear and determine the petition

The name Andrew Barretto, under which the petition for change of name was brought, is the applicant's baptized name. There is no showing whether the same is also his real and official name, i.e., his name as appearing in the Civil Registry. In Ng Yao Siong vs. Republic, supra, this Court declared that the only name that may be changed is the true or official name recorded in the Civil Registry. Thus, the present petition is not sufficient in form and substance. The name sought to be adopted does not appear in the title of the petition. Also, the same does not appear in the title of the order of publication. These are jurisdictional defects.

The order of publication is defective for another reason: it does not cite the cause for which the change of name is sought. Consequently, the publication itself is defective on three counts: (1) the name Andrew Barretto appearing therein may not be the petitioner's real name; (2) the cause for which the change of name is sought does not appear therein; and (3) the name sought to be adopted does not appear in the title or caption of the published order.

2. YES. The touchstone for the grant of a change of name is that there be "proper and reasonable cause" for which the change is sought. It is a ruling of long standing in this jurisdiction that a change of name is not a matter of right; that, being a privilege, before it can be authorized, the person petitioning for such change must first show proper and compelling reason therefor. And what may constitute as proper and compelling reason depends on the particular circumstances of each case, and upon the discretion of the court.xxx

In his petition, Andrew Barretto states that he desires to change his name to ANDREW VELEZ because it is the surname of his step-father Magin V. Velez with whom he is living at present. This reason alleged by Andrew Barretto is not compelling enough to warrant the change of name prayed for.

The surname "Barretto" is his mother's surname. He is the illegitimate child of Lucy Barretto. But he is not a natural child of Magin V. Velez, The circumstances of his illegitimate filiation are not known. Magin V. Velez had children of his own before he married the applicant's mother. Magin V. Velez and Lucy Barretto also have their own children. To warrant the change of name herein sought will necessarily invite confusion as to paternity, to the prejudice of Magin V. Velez, the applicant's mother, as well as their common and separate offsprings.

Wherefore, the decision rendered by the Court of First Instance of Cebu in Special Proceeding No. 2742-r is hereby set aside for being null and void.