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AZCUNA UPDATES1)       The Comelec en banc cannot now be declared to have committed grave abuse of discretion in disqualifying petitioner candidate for Representatative because (1) the Comelec decision is already final, the petition here having been filed after five days from notice, and (2) Comelec still has jurisdiction over the case since petitioner had not yet assumed office.  HRET's jurisdiction sets in when the candidate has been proclaimed, has taken oath and has assumed office. (Regina Ongsiako Reyes v. Comelec, G.R. No. 207264, June 25, 2013. (En Banc, Perez, J.)

          (The proclamation of a winning candidate divests the Comelec of its jurisdiction over matters pending before it at the time of the proclamation. (Limkaichong v. Comelec, G.R. Nos. 178831-32, etc., April 1, 2009, 583 SCRA 1).  HRET rules count the 15-day period to file protests and quo warranto from the time of the proclamation, Rule 16 & 17. Dissenting Opinion of Brion, J.).            Furthermore, Comelec committed grave abuse of discretion in finding petitioner to have lost and abandoned her domicile of origin when she became a naturalized American citizen. (Ibid.,Brion, J.)  2)       Renunciation of US citizenship followed by repeated use of US passport shows lack of abandonment of US citizenship. (Maquiling v. Comelec, G.R. No. 195649, July 2, 2013. (Resolution En Banc, C.J.).    3)       Bigamy is commited where the first marriage still existed when the second marriage was contracted, even if the first marriage is later declared void. (Capili v. People, G.R. No. 183805, July 3, 2013. (3rd Div., Peralta, J.)  4)       Decisions of the Ombudsman are immediately executory.           The rule of procedure in the Ombudsman office is that where the respondent is absolved of the charge, or where respondent is convicted and the penalty imposed is public censure or reprimand or suspension of not more than one month or a fine equivalent to one month salary, the decision is final, executory and unappealable.           In all other cases, the decision may be appealed to the Court of Appeals  but the appeal shall not stop the decision from being executory.           If the penalty is suspension or removal and the respondent wins such appeal, respondent shall be considered as having been under preventive suspension and shall be paid the

salary and such other emoluments not received by reason of the suspension or removal. (Office of the Ombudsman v. Ernesto M. Echavez, et al., G.R. No. 172206, July 3, 2013 (3rd Div., Peralta, J.)        5)       The rule in redemption of properties is that it is not sufficient that a person offering to redeem manifests a desire to do so.  The statement of intention must be accompanied by an actual and simultaneous tender of payment.  This constitutes the exercise of the right to repurchase. (See, Art. 1616, Civil Code).            Signifying their intention to avail of the incentive scheme (liberalizing payments and terms) did not amount to an exercise of redemption precluding the bank from making the public sale.           (Note by ASA: The liberalized incentive scheme program was to expire on December 31, 1988.  The bank sold the properties on November 4, 1988.  Yet, petitioners' claim that the sale was premature was rejected by the SC on the ground that the evidence (a letter) did not show that the bank had unequalifiedly represented to petitioners that it had extended the redemption period to December 31, 1988. The letter to petitioners had said both that the incentive scheme [open to all owners of foreclosed properties] would expire December 31, 1988, and that their own redemption was up to April 21, 1988.  For me, the letter of the bank was misleading.)  (Spouses Hojas v. Philippine Amanah Bank, G.R. No. 193453, June 5, 2013. (3rd Div., Mendoza, J.)  6)       An unregistered deed of sale has an inferior probative value to a title certificate.(Meralco v. Heirs of Spouses Deloy, G.R. No. 192893, June 5, 2013, (3rd Div., Mendoza, J.) 7)       A broker has the right to the agreed commission even if the owner revoked his authority and directly negotiated with the buyer whom the owner met thru the broker's efforts. (Infante v. Cunanan, 93 Phil. 691, 695 [1953]).           As for the fact that the properties were eventually sold for less than the original asking price, that was within the owner's discretion, decided unilaterally without consulting the broker.  Thus, the owner should be deemed to have waived its own minimum price requirement. (Oriental Petroleum & Minerals Corp. v. Tuscan Realty, Inc., G.R. No. 195481, July 10, 2013. (3rd Div., Abad, J.)  8)       When is a person engaged in labor-only contracting?  What is its effect?           Any person who undertakes to supply workers to an employer is engaged in labor-only contracting where such person:           (1)  Does not have substantial capital or investment in the form of tools, equipment, machineries, work premises and other materials, and,

           (2) The workers recruited and placed by such person are performing activities which are directly related to the principal [activity] or operations of the employer in which the workers are habitually employed.           Such act (labor-only contracting) is prohibited and the person acting as contractor shall be considered merely as an agent of the employer and shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. (Sec. 8, DOLE Dept. Order No. 10, Series of 1997). (First Phil. Industrial Corp. v. Raquel M. Calimbas, G.R. No. 179256, July 10, 2013. (3rd Div., Peralta, J.)  9)       Fair market value of land taken for agrarian reform is reckoned as of the time of the taking. (Heirs of Spouses Tria v. Land Bank, G.R. No. 170245, July 1, 2013. (3rd Div., Perez, J.)   10)  The Rules of Court provide that a final and executory judgment may be executed by motion within 5 years from the date of its entry or by action after the lapse of 5 years and before prescription sets in.  This Court, however, has allowed exceptions, when execution may be made by motion after 5 years, where the delay is caused or occasioned by actions of the judgment obligor and/or incurred for his benefit or advantage.  The rationale for the rule is to prevent parties from sleeping on their rights.  In the case of exception, the party moving cannot be said to have slept on his rights.   (RCBC v. Serra, G.R. No. 203241, July 10, 2013. (2nd Div., Carpio, J.)  11)      The rule is that a proper special procedings is required to declare heirship and the issue cannot be ventilated in a suit for recovery of property.  Exceptions:            (1)  For practical reasons, when it appeared that no other property was involved in the inheritance and the parties in the civil case had voluntarily submitted the issue to the trial court and already presented their evidence regarding the heirship and the RTC consequently rendered judgment thereon, or           (2) When a special proceeding had been instituted but had been finally closed and terminated, and, hence, cannot be re-opened. (Heirs of Magdaleno Ypon v. Ponteras, G.R. No. 198680, July 8, 2013. (Resolution En banc, Perlas-Bernabe, J.)  12)      Relaxation of procedural rules by way of exceptions to finality and entry of judgments (the doctrine of immutability of judgments) are allowed by reversing judgments and recalling their entries “in the interest of substantial justice and where special and compelling reasons exist for such actions.”  (Apo Fruits Corp. v. Land Bank, G.R. No. 164195, Oct. 12, 2010, 632 SCRA 727, 760 citing Equitable Banking Corp. v. Sadac, G.R. No. 164772, June 8, 2006, 490 SCRA 380, 416-417).

Bases Conversion Development Authority v. Rosa Reyes Cenando, G.R. No. 194242, June 19, 2013. (2nd Div., Perlas-Bernabe, J.)  

1)       Removal of chairs in the bottling plant of Coca-Cola Bottlers Phils., Inc. not violative of labor laws.           1.  Law requires chairs only for women workers.  In this case, all operators were men.           2.  Removal of chairs was done in good faith, to increase efficiency and prevent operators from falling asleep on the job, and was compensated by reduced operating hours and increase of the break periods.             3.  Nature of the work called for moving constantly while working, so the chairs were not necessary.           4.  Prolonged sitting at work poses health hazards, per scientific studies. (Royal Plant Workers Union v. Coca-Cola Bottlers Phils., Inc.-Cebu Plant, G.R. No. 198783, April 15, 2013. (3rd Div., Mendoza, J.)  2)       The doctrine of indefeseability of Torrens title does not extend to transferees who take the certificate of title in bad faith.           In this case: petitioners-buyers acted in bad faith: (1) seller did not have possession of subject property; (2) during the sale, seller did not have the owner's duplicate copy of the title; (3) there were existing permanent improvements on the land; (4) respondents were in actual possession of the land. (Sps. Esmeraldo D. Vallido, et al. v. Sps. Elmer Pono, et al., G.R. No. 200173, April 15, 2013. (3rd Div., Mendoza, J.)  3)       An indispensable party is a party-in-interest without whom no final determination can be had of the action.           Non-joinder of an indispensable party is not a ground for dismissal of an action.  The court should have directed petitioner to implead the indispensable party.  In case of refusal, then the court can dismiss the complaint for plaintiff's failure to comply with the order.           (Heirs of Faustino Mesina v. Heirs of Domingo Fian, G.R. No. 201816, April 8, 2013. (3rd Div., Velasco, Jr., J.)  4)       An amicable settlement reached after a barangay conciliation, per the Revised Katarungang Pambarangay Law, has the force and effect of a final judgment of the court, Exception           When repudiated or a petition to nullify it is filed before the proper city of municipal court in 10 days from its date. Enforcement 

          The settlement may be enforced by execution by the lupong tagapamayapa in 6 months from its date, or by action in the appropriate city of municipal court beyond such period. The Precept           The precept under Art. 2037, Civil Code, is that a Compromise Agreement that is not contrary to law, public order, public policy, morals or good customs, is a valid contract which is the law between the parties and has the effect of res judicata even if not judicially approved. The Precept Qualified           However, Art. 2041, Civil Code, (effective August 30, 1950), grants for the first time the right of rescission to a party of a Compromise Agreement in case the other party violates its terms.  The aggrieved party has the right to “either enforce the Compromise Agreement or regard it as rescinded and insist upon his original demand.”           Art. 2041, Civil Code, therefore, qualifies the broad precept under Art. 2037 that “[A] Compromise has upon the parties the effect and authority of res judicata.”            Furthermore, in exercising the option of rescission, the aggrieved party may bring the  suit contemplated or involved in his original demand, as if no Compromise Agreement had ever been entered into, without need to bring an action for rescission, because by the breach of the other party he may regard the compromise as already rescinded. Citing,Valdez v. CA, G.R. No. 159411, March 18, 2005, 453 SCRA 843. (Rey Castegador Catedrilla v. Mario and Margie Lauron, G.R. No. 179011, April 15, 2013. (3rd Div., Peralta, J.)   5)                                The Purpose of Amparo           The Writ of Amparo serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.           It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.            In this case, the thrust of ensuring that the investigations are conducted and the rights to life, liberty and security of the petitioner, remains. Substantial Evidence Suffices           The Writ of Amparo partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner.  The Totality of the Evidence is the Standard           The totality of the evidence as a standard for the grant of the writ  was correctly applied here.           As first laid down in Razon v. Tagitis, [G.R. No. 182498, December 3, 2009, 606 SCRA 598, 692], “the fair and

proper rule is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced.  In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence.  Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.” [Emphasis supplied by Supreme Court to the Tagitis quote]. Directive to Investigate Stands           The Supreme Court thus denied respondents-military officers' motion for reconsideration of the decision of November 15, 2011, and directed the Office of the Ombudsman and the DOJ to take appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may have been incurred by respondents-military officers, for the abduction and torture of petitioner as narrated in petitioner's Sinumpaang Salaysay which is a meticulous and straighforward account of his horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his suspected membership in the NPA.     (In the matter of the Petition for a Writ of Amparo, and Habeas Data, in favor of Noriel Rodriquez, Rodriguez v. Gloria Macapagal-Arroyo, et al., G.R. No. 191805; Police Director Gen. Jesus H. Verzosa v. Noriel Rodriguez , G.R. No. 193160, April 16, 2013. (ResolutionEn Banc, Sereno, C.J.)  6)       LGUs and DENR share the responsibility in the sustainable management and development of the forest reserves within their territorial jurisdiction.  The LGUs' capacity in forest management is to be enhanced and then the primary tasks of management of devolved functions shall be performed by the LGUs and the role of the DENR becomes assistive and coordinative.           Mayor Ruzol's permit to transport was held invalid for failure to follow required procedure and for absence of supporting ordinance.           But he is not guilty of usurpation of official functions since he acted in good faith and he did not intend his permit to supplant that of DENR but to complement it.  (Leovegildo R. Ruzol v. Hon. Sandiganbayan, G.R. Nos. 186735-960, April 17, 2013. (3rd Div., Velasco, J.)   

    1)  Relinquishment and waiver of rights under contract by failure to demand it... (F.F. Cruz & Co., Inc. v. HR Construction Corp., G.R. No. 187521, March 14, 2012)           2)  Recognization of foreign judgment (Minoru Fujiki v. Maria Paz Galela Marinay, et al., G.R. No. 196049, June 26, 2013):           For the purpose, Philippine courts will only determine (1) whether the foreign judgment is inconsistent with an overriding public policy in the Philippines; and (2) whether any alleging party is able to prove an intrinsic ground to repel the foreign judgment, i.e., want of jurisdiction, want of notice

to the party, collusion, fraud, or clear mistake of law or fact.   If there is neither inconsistency with public policy nor adequate proof to repel the judgment, Philippine courts should, by default, recognize the foreign judgment as part of the comity of nations.   Section 48(b), Rule 39 of the Rules of Court states that the foreign judgment is already “presumptive evidence of a right between the parties.”  Upon recognition of the foreign judgment, this right becomes conclusive and the judgment serves as the basis for the correction or cancellation of entry in the civil registry.  The recognition of the foreign judgment nullifying a bigamous marriage is a subsequent event that establishes a new status, right and  fact. [See Rules of Court, Rule 1, Sec. 3(c)] that needs to be reflected in the civil registry.  Otherwise, there will be an inconsistency between the recognition of the effectivity of the foreign judgment and the public records of the Philippines.             3)  IBP Election of Executive Vice-President (2011-2013) dispute resolved (Atty. Marcial M. Magsino,- et al. v. Atty. Rogelio A. Vinluan, et al., A.C. No. 09-5-2-SC & AC No. 8292, April 11, 2013):            To avoid the endless conflicts, confusions and controversies which have been irritably plaguing the IBP, the solution is to start another rotational round, a new cycle, open to all regions.  At any rate, all regions, after the election of Libarios, would be considered as already having its turn in the presidency.  This is not to detract from the fact that under Section 47, as amended, and from the persistent rulings, the position of EVP-IBP is the one being actually rotated, but as stated in the December 14, 2010 Resolution (Rollo, pp. 2998-3026), it will enable the IBP “to start on a clean and correct slate, free from the politicking and the under handed tactics that have characterized the IBP elections for so long.”   Section 47 of the IBPBy-Laws should be furtheramended           Whatever the decision of the Court may be, to prevent future wranglings and guide the IBP in their future course of action, Section 47 and Section 49 of the IBP By-laws should again be amended. Stress should be placed on the automatic succession of the EVP to the position of the president. Surprisingly, the automatic succession does not appear in present Section 47, as ordered amended by the Court in the December 14, 2010 Resolution. It should be restored. Accordingly, Section 47 and Section 49, Article VII, are recommended to read as follows:           Sec. 47. Election of National President Executive Vice President. – The Integrated Bar of the Philippines shall have a President, an Executive Vice President, and nine (9) regional Governors. The Governors shall be ex-officio Vice President for their respective regions.           The Board of Governors shall elect the President and Executive Vice President from among themselves each by a vote of at least five (5) Governors. Upon expiration of the term of the President, the Executive Vice-President shall automatically succeed as President.           Each region, as enumerated under Section 3, Rule 139-A of the Rules of Court, shall have the opportunity to have its representative elected as Executive Vice-President, provided

that, the election for the position of Executive Vice President shall be on a strict rotation by exclusion basis. A region, whose representative has just been elected as Executive Vice President, can no longer have its representative elected for the same position in subsequent elections until after all regions have had the opportunity to be elected as such. At the end of the rotational cycle, all regions, except the region whose representative has just served the immediately preceding term, may be elected for another term as Executive VicePresident in the new rotational cycle. The region whose representative served last in the previous rotational cycle may be elected Executive Vice-President only after the first term of the new rotational cycle ends, subject once more to the rule on exclusion.           The order of rotation by exclusion shall be without prejudice to the regions entering into a consensus to adopt any pre-ordained sequence in the new rotation cycle provided each region will have its turn in the rotation.           A violation of the rotation rule in any election shall be penalized by annulment of the election and disqualification of the offender from election or appointment to any office in the IBP.           SEC. 49. Terms of office. - The President and the Executive Vice-President shall hold office for a term of two years from July 1 following their election until June 30 of their second year in office and until their successors shall have been duly chosen and qualified.           In the event the President is absent or unable to act, his functions and duties shall be performed by the Executive Vice President, and in the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President for the unexpired portion of the term. His tenure as such shall not be considered a new turn in the rotation.           In the event of death, resignation, removal or disability of the Executive Vice President, the Board of Directors shall elect among the regions qualified to be elected as Executive Vice President to serve the unexpired portion of the term or period of disability.           In the event of the death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion of the term or during the period of disability. Unless otherwise provided in these By-Laws, all other officers and employees appointed by the President with the consent of the Board shall hold office at the pleasure of the Board or for such term as the Board may fix. Creation of a permanentCommittee for IBP Affairs           To further avoid conflicting and confusing rulings in the various IBP cases like what happened to this one, the December 14,2010 Resolution and Velez [Velez v. de Vera, 528 Phil. 783, 810-812 (2006)], it is recommended that the Court create a committee for IBP affairs to primarily attend to the problems and needs of a very important professional body and to make recommendation for its improvement and strengthening.

           WHEREFORE, the Court hereby resolves to: 1] GRANT the Motion for Leave to Intervene and to Admit the Attached Petition In Intervention; 2] DECLARE that the election for the position of the EVP for the 2011-2013 term be open to all regions. 3] AMEND Section 47 and Section 49, Article VII of the IBP By-Laws to read as recommended in the body of this disposition.           4] CREATE a permanent Committee for IBP Affairs.           SO ORDERED.            4)  System of issuance of acknowledgment receipts allowed. (Frederick James C. Orais v. Dr. Amelia C. Almirante, G.R. No. 181195, June 10, 2013)           5)  Collateral source rule – not applicable to no-fault insurance contracts (Darma Maslag v. Elizabeth Monzon, et al., G.R. No. 174908, June 17, 2013: Atty. Funk erred in applying thecollateral source rule.           The Voluntary Arbitrator based his ruling on the opinion of Atty. Funk that the employees may recover benefits from different insurance providers without regard to the amount of benefits paid by each. According to him, this view is consistent with the theory of the collateral source rule.           As part of American personal injury law, the collateral source rule was originally applied to tort cases wherein the defendant is prevented from benefitting from the plaintiff’s receipt of money from other sources. (YOUNG, MELISSA. TORT REFORM AND THE COLLATERAL SOURCE RULEwww.google.com;www.aaos.org/news/aaosnow/mar09/managing4.asp.>, (visited March 1, 2013). Under this rule, if an injured person receives compensation for his injuries from a source wholly independent of the tortfeasor, the payment should not be deducted from the damages which he would otherwise collect from the tortfeasor. (BLACK’S LAW DICTIONARY WITH PRONUNCIATIONS, (Sixth ed. 1990/Centennial Edition). In a recent Decision (Wills v. Foster, Jr., 229 Ill. 2d 393, 399 (Ill. 2008) by the Illinois Supreme Court, the rule has been described as “an established exception to the general rule that damages in negligence actions must be compensatory.” The Court went on to explain that although the rule appears to allow a double recovery, the collateral source will have a lien or subrogation right to prevent such a double recovery.(Id.) In Mitchell v. Haldar, [883 A.2d 32, 37-38 (Del. 2005)] the collateral source rule was rationalized by the Supreme Court of Delaware: The collateral source rule is ‘predicated on the theory that a tortfeasor has no interest in, and therefore no right to benefit from monies received by the injured person from sources unconnected with the defendant.’ According to the collateral source rule, ‘a tortfeasor has no right to any mitigation of damages because of payments or compensation received by the injured person from an independent source.’ The rationale for

the collateral source rule is based upon the quasi-punitive nature of tort law liability. It has been explained as follows: The collateral source rule is designed to strike a balance between two competing principles of tort law: (1) a plaintiff is entitled to compensation sufficient to make him whole, but no more; and(2)      a defendant is liable for all damages that proximately result from his wrong. A plaintiff who receives a double recovery for a single tort enjoys a windfall; a defendant who escapes, in whole or in part, liability for his wrong enjoys a windfall. Because the law must sanction one windfall and deny the other, it favors the victim of the wrong rather than the wrongdoer. Thus, the tortfeasor is required to bear the cost for the full value of his or her negligent conduct even if it results in a windfall for the innocent plaintiff. (Citations omitted)           As seen, the collateral source rule applies in order to place the responsibility for losses on the party causing them. (PERILLO, JOSEPH M., THE COLLATERAL SOURCE RULES IN CONTRACT CASES, San Diego Law Review, 46 San Diego L. Rev. 705, 709-710 (Summer, 2009); www.lexis.com.>. Its application is justified so that "'the wrongdoer should not benefit from the expenditures made by the injured party or take advantage of contracts or other relations that may exist between the injured party and third persons.” (Wills v. Foster, Jr., supra note 40 at 397). Thus, it finds no application to cases involving no-fault insurances under which the insured is indemnified for losses by insurance companies, regardless of who was at fault in the incident generating the losses. (BLACK’S LAW DICTIONARY, (Fifth ed. 273, 1979). Here, it is clear that MMPC is a no-fault insurer. Hence, it cannot be obliged to pay the hospitalization expenses of the dependents of its employees which had already been paid by separate health insurance providers of said dependents.           The Voluntary Arbitrator therefore erred in adopting Atty. Funk’s view that the covered employees are entitled to full payment of the hospital expenses incurred by their dependents, including the amounts already paid by other health insurance companies based on the theory of collateral source rule.                          6)  Interest rates of 3%/month excessive and void!!! – (Sps. Deo Agner & Maricon Agner v. BPI Family Savings Bank, et al., G.R. No. 182963, June 3, 2013):           Settled is the principle which this Court has affirmed in a number ofcases that stipulated interest rates of three percent (3%) per month and higher are excessive, iniquitous, unconscionable, and exorbitant. (Arthur F. Menchavez v. Marlyn M. Bermudez, G.R. No. 185368, October 11, 2012). While Central Bank Circular No. 905-82, which took effect on January 1, 1983, effectively removed the ceiling on interest rates for both secured and unsecured loans, regardless of maturity, nothing in the said circular could possibly be read as granting carte blanche authority to lenders to raise interest rates to levels which would either enslave their borrowers or lead to a hemorrhaging of their assets. (Macalinao v. Bank of the Philippine Islands, G.R. No. 175490, September 17, 2009, 600 SCRA 67, 77, citing Chua v. Timan, G.R. No. 170452, August

13, 2008, 562 SCRA 146, 149-150). Since the stipulation on the interest rate is void for being contrary to morals, if not against the law, it is as if there was no express contract on said interest rate; thus, the interest rate may be reduced as reason and equity demand. (Arthur F. Menchavez v. Marlyn M. Bermudez, G.R. No. 185368, October 11, 2012, citing Macalinao v. Bank of the Philippine Islands, supra, at 77, and Chua v. Timan, supra, at 150).           WHEREFORE, the petition is DENIED and the Court AFFIRMS WITH MODIFICATION the April 30, 2007 Decision and May 19, 2008 Resolution of the Court of Appeals in CA-G.R. CV No. 86021. Petitioners spouses Deo Agner and Maricon Agner are ORDERED to pay, jointly and severally, respondent BPI Family Savings Bank, Inc. (1) the remaining outstanding balance of their auto loan obligation as of May 15, 2002 with interest at one percent ( 1 o/o) per month from May 16, 2002 until fully paid; and (2) costs of suit.           SO ORDERED.           7) Rule on pretermission of holiday if extension is granted. – (Reiner Pacific International Shippng, Inc., et al. v. Captain Francisco B. Guevarra, G.R. No. 157020, G.R. No. 157020, June 19, 2013):                   The correct rule, according to the clarification, is that "[a]ny extension of time to file the required pleading should x x x be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday or legal holiday."           For example, if a pleading is due on July 10 and this happens to be a Saturday, the time for filing it shall not run, applying Section 1 of Rule 21, on July 10 (Saturday) nor on July 11 (Sunday) but will resume to run on the next working day, which is July 12 (Monday). The pleading will then be due on the latter date. If the period is extended by 10 days, such 10 days will be counted, not from July 12 (Monday) but from the original due date, July 10 (Saturday) "regardless of the fact that said due date is a Saturday." Consequently, the new due date will be 10 days from July 10 or precisely on July 20.           8) What is a derivative suit? – (Juanito Ang, for and in behalf of Sunrise Marketing (Bacolod), Inc. v. Sps. Roberto and Rachel Ang., G.R. No. 201675, June 19, 2013):           This Court, in Yu v. Yukayguan, (G.R. No. 177549, 18 June 2009, 589 SCRA 588, at 618, citing Bitong v. Court of Appeals, 354 Phil. 516 (1998) explained:            The Court has recognized that a stockholder’s right to institute a derivative suit is not based on any express provision of the Corporation Code, or even the Securities Regulation Code, but is impliedly recognized when the said laws make corporate directors or officers liable for damages suffered by the corporation and its stockholders for violation of their fiduciary duties. Hence, a stockholder may sue for mismanagement, wasteor dissipation of corporate assets because of a special injury to him for which he is otherwise without redress. In effect, the suit is an action for specific performance of an obligation owed by the corporation to the stockholders to assist its rights of action when the corporation has been put in default by the wrongful refusal of the directors or management to make suitable measures for its protection. The basis of a

stockholder’s suit is always one in equity. However, it cannot prosper without first complying with the legal requisites for its institution. (Emphasis in the original)           Section 1, Rule 8 of the Interim Rules imposes the following requirements for derivative suits:    (1) [The person filing the suit must be] a stockholder or member at the time the acts or transactions subject of the action occurred and the time the action was filed;    (2) [He must have] exerted all reasonable efforts, and alleges the same with particularity in the complaint, to exhaust all remedies available under the articles of incorporation, by-laws, laws or rules governing the corporation or partnership to obtain the relief he desires;    (3) No appraisal rights are available for the act or acts complained of; and    (4) The suit is not a nuisance or harrassment suit.           Applying the foregoing, we find that the Complaint is not a derivative suit. The Complaint failed to show how the acts of Rachel and Roberto resulted in any detriment to SMBI.           9) Period of Lease of land extended by the court – (Conrado O. Almagro v. Sps. Manuel Amaya, Sr., et al., G.R. No. 179685, June 19, 2013)           10) Law of the case explained – (Sps. Manuel Sy and Victoria Sy v. Genalyn D. Young, G.R. No. 169214, June 19, 2013):           Law of the case has been defined as the opinion delivered on a former appeal. It means that whatever is once irrevocably established the controlling legal rule of decision between the same parties in the same case continues to be the law of the case whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (Radio Communications of the Phils., Inc. v. CA, 522 Phil. 267, 273 (2006), citing Padillo v. Court of Appeals, 422 Phil. 334 (2001).           We point out in this respect that the law of the case does not have the finality of res judicata. Law of the case applies only to the same case, whereas res judicata forecloses parties or privies in one case by what has been done in another case. In law of the case, the rule made by an appellate court cannot be departed from in subsequent proceedings in the same case. Furthermore, law of the case relates entirely to questions of law while res judicata is applicable to the conclusive determination of issues of fact. Although res judicata may include questions of law, it is generally concerned with the effect of adjudication in a wholly independentproceeding. (Padillo v. Court of Appeals, supra, at 352, citing Comilang v. Court of Appeals (Fifth Division), 160 Phil. 85 (1975).           The rationale behind this rule is to enable an appellate court to perform its duties satisfactorily and efficiently, which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal. Without it, there

would be endless litigation. Litigants would be free to speculate on changes in the personnel of a court, or on the chance of our rewriting propositions once gravely ruled on solemn argument and handed down as the law of a given case. (Zarate v. Director of Lands, 39 Phil. 747, 749-750 (1919).           11)  Personal liability of superior for unlawful expenditures not present here – (Rosalinda Dimapilis-Baldoz v. Commission on Audit, G.R. No. 199114, July 16, 2013):           It is well to stress that neither will it do justice to hold Dimapilis-Baldoz personally liable simply because she possessed the final authority for the disbursements and had direct supervision over her subordinates. Case law exhorts that although a public officer is the final approving authority and the employees who processed the transaction were directly under his supervision, personal liability does not automatically attach to him but only upon those directly responsible for the unlawful expenditures. (Salva v. Carague, G.R. No. 157875, December 19, 2006, 511 SCRA 258, 264).  As Dimapilis-Baldoz’s direct responsibility therefor had not been demonstrated, in addition to her good faith as above-discussed, there is no cogent factual or legal basis to hold her personally liable. In this respect, the Court finds that the COA gravely abused its discretion.           12)  Constitutionality of RA 9263 (VAWC) sustained – (Jesus C. Garcia v. Judge Ray Alan T. Drilon, et al., G.R. No. 179267, June 25, 2013)             13)  Admin case vs a judge cannot be filed AFTER his retirement (OCA v Retired Judge Guillermo R. Andaya, A.M. No. RTJ-09-2181, June 25, 2013)

1)               A preliminary investigation is either executive (by a fiscal) to determine probable cause to file a case in court, or judicial (by a judge) to determine probable cause to issue a warrant of arrest.           The judicial type is called preliminary examination.           It's the duty of the judge to make it upon receiving a criminal complaint or information, so a motion for judicial determination of probable cause is superfluous.           In doing this (preliminary examination), a judge may           (1) dismiss the case outright, if from the records there's clearly no probable cause;           (2) issue a warrant of arrest, if he determines that probable cause exists, or           (3) ask the fiscal to submit more evidence. (Virginia de los Santos-Dio v. Hon. Court of Appeals, G.R. No. 178947; People v. Desmond, G.R. No. 179079, June 25, 2013. (2nd Div., Perlas-Bernabe, J.) 2)               Claim for refund of tax from a local government (City of Manila) requires  (1) written claim for refund/credit filed with local treasurer and (2) case or proceeding for refund filed within 2 years from date of payment of tax, fee or charge or from date taxpayer is entitled to a refund or credit. 

(Metro Manila Shipping Mecca Corp. v. Ms. Toledo, G.R. No. 190818, June 5, 2013. (2nd Div., Perlas-Bernabe, J.)  3)       The Paris Convention is recognized and protection is extended to parties thereto in trademarks. (Ecole de Cuisine Manille (Cordon Bleu of the Philippines), Inc. v. Renaud Cointreau & Cie and Le Cordon Bleu Int'l., B.V., G.R. No. 185830, June 5, 2013. (2nd Div., Perlas-Bernabe,J.)  4)       A disqualified candidate whose certificate of candidacy is cancelled after assumption of office is a de facto officer.  The cancellation/ disqualification thus creates no vacancy and no succession occurs.  The  de jure officer just assumes the office. (Svetlana P. Jalosjos v. Comelec, G.R. No. 193314, June 25, 2013. (En Banc, Sereno,C.J.,)       (5)      Persons connected with the Court are barred from acquiring properties and rights “in litigation.”  (See, Art. 1491, par. 5, Civil Code)           The meaning of “in litigation” is explained.           The prohibition arises from the relationship of trust involved and seeks to prevent fraud.           It does not apply where the transaction occurs after the contest or litigation on the thing is over.           But property subject to estate proceedings, until such proceedings are closed and terminated, the debts paid, and the estate is distributed to the heirs, are still “in litigation” and covered by the prohibition. (Sabidong v. Solas, A.M. No. P-01-1448, June 25, 2013. (En Banc, Villarama, J.) 6)  Romeo G. Jalosjos is perpetually disqualified from running for public office.  No pardon or commutation of his perpetual disqualification was given. (Romeo G. Jalosjos v. Comelec, G.R. No. 205033, June 18, 2013 (En Banc, Perlas-Bernabe, J.) 7)       A. Rule  Where an employee is terminated for a just cause, no separation       pay is due,          B.  Exceptions  Except as an act of social  justice or on equitable grounds,          C.  Exceptions to the Exceptions  But not where the dismissal (1) was for serious misconduct or (2)  reflected on  the moral character of the employee.          (Unilever Phil., Inc. v. Maria Ruby M. Rivera, G.R. No. 201701, June 3, 2013. (3rd Div., Mendoza, J.).

Significant New Decisions/Supreme CourtMarch 19, 2013 at 11:34pm                                 BY ADOLFO S AZCUNA --COPYRIGHT 2013.       Proceedings against attorneys are private and confidential. The final order, however, is publishable. (1)       An attorney was fined P20,000 for distributing to media copies of her complaint for disbarment against another lawyer. The members of media, however, who published the fact of the filing of the complaint, were spared from sanction on the ground that the subject matter out of which the complaint arose was of public interest (the Ampatuan murder cases). (2)       Asking for separation pay does not prove abandonment of employment. (3)       The Rules allow a court to reverse its decision, even motu proprio, if it is incorrect and will cause injustice. (4)       A statute fixing the value for payment of just compensation in eminent domain is not binding on the courts. (5)       In a contract TO sell, full payment of the purchase price is a suspensive condition, so that non-payment by the buyer prevents the condition from happening, and ownership remains with the seller, with no remedies to the buyer. (6)       An employee can be dismissed for the just causes stated in Art. 282 of the Labor Code.  But the employer has to give her two notices:  A first written notice that informs the employee of the particular acts or omissions for which her dismissal is sought; and--after the proper hearing-- a second written notice that informs her of the decision to dismiss her. (7)       Failure to observe the two-notice rule for dismissal is a denial of due process but the dismissal, if for a just cause, remains valid.  The employer is however liable for nominal damages, now fixed at P30,000, for violating the rule. (8)       Petitioner is disqualified to run for mayor in the 2010 elections for lack of residence.  Building a house in the town in not enough. (9)       Where the inculpatory evidence points to only one thing, the guilt of respondents as charged, the Court of Appeals erred in applying the equipoise rule. (10)       A foreign corporation not doing business in the Philippines can file before a Philippine court a petition for confirmation, recognition and enforcement of a foreign arbitral award.  The grounds are those set forth in Art. V of the New York

Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958), which Convention has been incorporated into the our Alternative Dispute Resolution (ADR) Act of 2004, which is the applicable law. (11)       The rationale for the 12% interest in just compensation for properties taken by the State, is to compensate property owners for the income they would have made had they been properly compensated for their properties at the time of the taking. (12)       Proof of the victim's age in rape cases is outlined in PRUNA (2002) and reiterated in RULLEPA (2003):           1. The best evidence - original or certified true copy of certificate of live birth;          2. In its absence, similar authentic documents such as baptismal certificate or school records,      showing the date of birth;          3. If the above is lost, destroyed or not available, testimony, if clear and credible, of victim's mother or family member qualified to testify on the matter, applying the provisions of Sec. 40, Rule 130;          4. Absent these, the complainant's testimony will suffice if expressly and clearly admitted by the accused;          5. The prosecution has the burden to prove the victim's age. Failure of the accused to object to testimonial evidence regarding age shall not be taken against him;          6. The trial court should always make a categorical finding as to the age of the victim. (13)      In Bigamy, the subsequent annulment of the first marriage is not a ground for exculpation. (14)      Only the Office of the Solicitor General can appeal he criminal aspect of a case (acquittal in libel in this case). (15)      The doctrine of strained relations in labor cases applied. (16)      The rule on forum shopping certification can be suspended for the sake of substantial justice. (17)      Where the elements of violation of B.P. 22 (Bouncing Check Law) already occurred, the pendency of a civil suit for rescission of the contract involved under Art. 1191, Civil Code, does not present a prejudicial question.  The contract is valid until rescinded, so there was no failure of consideration when the checks were dishonored.  The contract, subject to rescission, is only voidable not void. (18)      In cases of contributory negligence, the rule is a 60-40 sharing, so the plaintiff can only recover 60 %. (19)      To hold a head of office in Government liable for conspiracy in approving the acts of his subordinate in an anti-graft case, there must be showing of an "added reason" for him to scrutinize the details of the transactions in question. (20)      An example in drugs cases where the chain of custody was held broken (21) and an example where, despite failure to observe the niceties of procedure under the law, the conviction was upheld because the integrity and evidentiary value of the seized items were preserved. (22) 

     Piercing the veil of corporate fiction sustained on grounds of common ownership, identity of directors and officers, manner of keeping corporate books and records and methods of conducting business. (23)      Disallowed benefits received in good faith need not be reimbursed to the Government. (24)      Where a judgment has been executed pending appeal and it is subsequently reversed, partially or totally, or annulled--on appeal or otherwise--the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. (25)      Ordinance No. 9503-2005 of the City of Cagayan de Oro is declared void.  It imposes a 10% tax on gross receipts of lease of poles during the preceding calendar year, whereas the Local Government Code limits the rate to not exceeding 2% of gross sales on receipts of the preceding year. (26)      A judicial claim for refund or credit of a tax can only be filed AFTER the lapse of 60 days from the filing of the administrative claim.  San Roque filed its judicial claim (for over P400 MM)  just 13 days after filing its administrative claim.  It, therefore,  cannot recove any refund or credit. (27)                                                             N O T E S       (1)   Sec. 18, Rule 139-B, Rules of Court.      (2)   Fortun v Quinsayas, G R No 194578, Feb 13. 2013.      (3)   Tegimenta Chemical v Oco, G R No 175369, Feb 27, 2013.      (4)   Ibid., citing Sec. 5(g), Rule 135, Rules of Court.      (5)   Spouses Cabahug v NPC, G R No 186069, Jan 30, 2013, referring to Sec. 3-A,              Republic Act No 6395 which provides that only 10% of the market value of a              property is due to the owner if it is subject to an easement of right of way.      (6)   Diego v Diego, G R No 179965, Feb 20, 2013.      (7)   Sang-an v Equator Knights, G R No 173169, Feb 13, 2013.     (8)   Ibid., applying the AGABON doctrine (2004).      (9)   Svetlana P Jalosjos v Comelec, G R No 193314, Feb 26, 2013.      (10) Ombudsman v Mapoy, G R No 197299, Feb 13, 2013.      (11) Tuna Processing v Philippine Kingford, G R No 185587, Feb 29, 2012.      (12) LBP v Obias, G R No 184406, Mar 14, 2012.      (13) Peo v Viojela, G R No 177140, Oct 17, 2012.      (14) Montanez v Cipriano, G R No 181089, Oct 22,2012. 

     (15) Bautista v Sharon G Cuneta-Pangilinan, G R No 189754, Oct 24, 2012.      (16) Martos v New San Jose Builders, G R No 192650, Oct 24, 2012.      (17) Rodriguez v  People, G R No 192799, Oct 24, 2012.      (18) Reyes v Rossi, G R No 159823, Feb 18, 2013.      (19) Allied Banking Corp v BPI, G R No 188363, Feb 27, 2013.      (20) Jaca v People, G R No 166967, and consolidated cases, Jan 28, 2013.      (21) Peo v Secreto, G R No 198115, Feb 27, 2013.      (22) Peo v Langcua, G R No 190343, Feb 6, 2013.      (23) Heirs of Fe Tan Uy v Int'l Exchange Bank, G R No 166282, and consolidated cases,              Feb 13, 2013.      (24) Nazareth v Hon Reynaldo A Villar, G R  No 188635, Jan 29, 2013.      (25) Ventanilla Enterprises v Tan, G R No 180325, Feb 20, 2013.      (26) Cagayan Electric v City of Cagayan de Oro, G R No 191761, Nov 14, 2012.      (27) Com'r of Int Revenue v San Roque Power Corp, G R No 187485, and consolidated              cases, Feb 12, 2013. 

"Betrayal of Public Trust Defined For The First Time" by Justice Adolfo S. AzcunaOctober 3, 2012 at 9:13am In Emilio A. Gonzales III v. Hon. Paquito N. Ochoa, Jr., G.R. No. 196231, September 4, 2012, the Supreme Court, by a vote of 8 to 6, with Madam Justice Estela M. Perlas-Bernabe as ponente, upheld the power of the President to remove the Deputy Ombudsman, pursuant to Republic Act No. 6770, the Ombudsman Act of 1989, on the same grounds provided for impeachment of the Ombudsman under the Constitution, namely, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes and betrayal of public trust.         Deputy Ombudsman Emilio A. Gonzales III was removed by President Benigno S. Aquino III on the ground of betrayal of public trust in connection with the manner he handled the case of  P/S Insp. Mendoza, the policeman who hijacked a tourist bus at the Luneta.         The Supreme Court, while upholding the President’s power to remove petitioner Gonzales III on the ground of betrayal of public trust, held that in this case the acts and omissions of petitioner did not amount to betrayal of public trust. 

        Salient parts of the ruling defining for the first time the concept of betrayal of public trust as a ground for removal, the same ground available in cases of impeachment, are thus very instructive:          "The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public trust to refer to '[a]cts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers.' In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment.           "A Deputy Ombudsman and a Special Prosecutor are not impeachable officers.  However, by providing for their removal from office on the same grounds as removal by impeachment, the legislature could not have intended to redefine constitutional standards as culpable violation for the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public trust, and apply them less stringently.  Hence, wherebetrayal of public trust, for purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special Prosecutor from office.  Hence, the fact that the grounds for impeachment have been made statutory grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot diminish the seriousness of their nature nor the acuity of their scope.  Betrayal of public trust could not 'overreach' to cover acts that are not vicious or malevolent on the same level as the other grounds for impeachment.           "The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system failure of government response.  It cannot be solely attributed then to what petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of the case, or to his error of judgment in the disposition thereof.  Neither should petitioner’s official acts in the resolution of P/S Insp. Mendoza’s case be judged based upon the resulting deaths at the Quirino Grandstand.  The failure to immediately act upon a party’s requests for an early resolution of his case is not, by itself, gross neglect of duty amounting to betrayal of public trust.  Records show that petitioner took considerably less time to act upon the draft resolution after the same was submitted to his appropriate action compared to the length of time that said draft remained pending and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez.  He reviewed and denied P/S Insp. Mendoza’s motion for reconsideration within nine (9) calendar days reckoned from the time the draft resolution was submitted to him on April 27, 2010 for the latter’s final action.  Clearly, the release of any final order on the case was no longer in his hands.              "Even if there was inordinate delay in the resolution of P/S/ Insp. Mendoza’s motion and an unexplained failure of petitioner’s part to supervise his subordinates in its prompt disposition, the same cannot be considered a vicious and malevolent act warranting his removal for betrayal of public trust.  More so because the neglect imputed upon petitioner appears to be an isolated case. 

          "Similarly, petitioner’s act of directing the PNP-IAS to endorse P/S Insp. Mendoza’s case to the Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his undue interest in the case that would amount to wrongful or unlawful conduct.  After all, taking cognizance of cases upon the request of concerned agencies or private parties is part and parcel of the constitutional mandate of the Office of the Ombudsman to be the 'champion of the people.'  The factual circumstances that the case was turned over to the Office of the Ombudsman upon petitioner’s request; that administrative liability was pronounced against P/S Insp. Mendoza even without the private complainant verifying the truth of his statements; that the decision was immediately implemented; or that the motion for reconsideration thereof remained pending for more than nine months cannot be simply taken as evidence of petitioner’s undue interest in the case considering the lack of evidence of any personal grudge, social ties or business affiliation with any of the parties to the case that could have impelled him to act as he did.  There was likewise no evidence at all of any bribery that took place, or of any corrupt intention or questionable motivation.           "Accordingly, the OP’s pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.  Hence, the President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust."    

New Supreme Court Decisions of NoteFebruary 25, 2013 at 11:10am(1)  Civil Law; Obligations and Contracts. – A debt is liquidated even if lack of accounting is alleged.  Applying Selegna ruling: TML Gasket Industries, Inc. v. BPI Family Savings Bank, Inc., G.R. No. 188768, Jan. 7, 2013, 2nd Division, Perez, J.        Labor Law – Lay-off is essentially retrenchment and under Art. 283 of the Labor Code a retrenched employee is entitled to separation pay equivalent to one (1) month salary or one-half (½) month salary per year of service, whichever is higher.   Applying the Sebuguero(1995) ruling.  MINDANAO TERMINAL AND BROKERAGE SERVICE, INC., ET AL. V. NAGKAHIUSANG MAMUMUO SA MINTEMBRO-SOUTHERN PHILIPPINES FEDERATION OF CEBU, ET AL., G.R. No. 174300, Dec. 5, 2012. 1st Division, Leonardo-de Castro, J.     (2)  Constitutional Law. – The meaning of “capital” in the constitutional provision limiting foreign ownership in public utilities, Sec. 11, Art. XII, refers only to shares that can vote in the election of directors.  Application in case of foreign debt converted to equity: First, identify into which class of shares the debt shall be converted, whether common shares, preferred shares that have the right to vote in the election of directors or non-voting preferred shares; Second, determine the number of shares with voting right held by foreign entities prior to

conversion.  If upon conversion, the total number of shares held by foreign entities exceeds 40% of the capital stock with voting rights, the constitutional limit on foreign ownership is violated.  Otherwise, the conversion shall be respected.  Applying the Gamboa v. Teves (2011) rule.  EXPRESS INVESTMENTS III PRIVATE LTD AND EXPORT DEVELOPMENT OF CANADA V. BAYAN TELECOMMUNICATIONS, INC., ET AL., G.R. Nos. 174457-59, 175418-20 and 177270, Dec. 05, 2012.  1st Division, Villarama, Jr., J.    (3)  Commercial Law.  –  Pari Passu principle in rehabilitaiton cases explained.          The commitment embodied in the pari passu principle only goes so far as to ensure that the assets of the distressed corporation are held in trust for the equal benefit of all creditors.  It does not espouse absolute equality in all aspects of debt restructuring. EXPRESS INVESTMENTS III PRIVATE LTD, ET AL. V. BAYAN TELECOMMUNICATIONS, INC., ET AL. (see above).  (4)  Remedial Law.  –  Nice distinction between certiorari as special civil action to correct excess of jurisdiction and certiorari as appeal to correct errors of law.  The Court of Appeals, in a special civil action for certiorari, went beyond finding that therein respondent administrative official acted within his jurisdiction and proceeded to decide the controversy on its merits.  Held, the Court of Appeals acted beyond its jurisdiction and its decision is annulled and set aside.         Applying the doctrine in Barnes v. Padilla (2004), the Supreme Court also set aside technicality of procedure “that tend to frustrate rather than promote substantial justice,” regarding the period for filing a motion for reconsideration in the Court of Appeals, and suspended the rules:  “The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself had already declared to be final.” (5)  Administative Law. –  Reconstitution of title.  Requisites.  Proof a) that the certificate of title had been lost or destroyed; b) that the documents presented by petitioner are sufficient and proper to warrant reconstitution of the lost or destroyed certificate of title; c) that the petitioner is the registered owner of the property or had an interest therein; d) that the certificate of title was in force at the first time it was lost or destroyed; and e) that the description, area and boundaries of the property are substantially the same and those contained in the lost or destroyed certificate of title.  Applying Republic v. El Gobierno de las Islas Filipinas (2005), Held, the absence of any document, private or official, mentioning the number of the certificate of title and the date when the certificate of title was issued, does not warrant [renders not warranted] the granting of the petition for reconstitution. REPUBLIC OF THE PHILIPPINES V. CONCEPCION LORENZO, ET AL., G.R. No. 172338, Dec. 10, 2012.  1st Division, Leonardo de Castro, J. (6)  Corporation Law. – Dissolution of a corporation does not affect intra-corporate rights.  It only prohibits the corporation from continuing its business.  VITALIANO N. AGUIRRE II, ET AL. V. FQB+7, INC., ET AL. G.R. No. 170770, Jan. 9, 2013.  2nd Division. Del Castillo, J.   

(7)  Civil Law. –  Solutio indebiti, Art. 2154 of the Civil Code embodies the concept of solutio indebiti, a quasi-contract, which arises when something is delivered through mistake to a person who has no right to demand it, which obligates that person to return what has been received through mistake. METROPOLITAN BANK & TRUST CO. V. ABSOLUTE MANAGEMENT CORPORATION. G.R. No. 170498, Jan. 9, 2013.  2nd Division.  Brion, J.   (8)  Administrative Law & Civil Law. – P.D. 957, The Subdivision and Condominium Buyers' Protective Decree, requires the bank to which a land converted to condo/subdivision lots has been mortgaged, to release from the mortgage the portions corresponding to lots or units already paid for.  [Azcuna's Comment: This is a departure from the rule of integrity of mortgage that allows the mortgagee to retain the mortgage until full payment.] REPUBLIC V. CESAR ENCELON, G.R. No. 170022, Jan. 9, 2013.  2nd Division.  Brion, J.      

New Supreme Court Decisions of Note – Part 2February 27, 2013 at 10:32am(9) Taxes and Duties. – E.O. 156. Ban on Used-Car Importation Sustained [outside of Subic Free Port]. EXECUTIVE SECRETARY, ET AL. V. FORERUNNER MULTI RESOURCES, INC., G.R. No. 199324, Jan. 7, 2013, 2nd Div., Carpio, J. (10) Political Law. – No reimbursement to foreigner who buys land in violation of the Constitution. WILLEM BEUMER V. AVELINA AMORES, ET AL., G.R. No. 195670, Dec. 3, 2012, 2nd Div., Perlas-Bernabe, J. (11) Drugs. – The four links in the chain of custody in drugs cases enumerated. Applying People v. Kamad (2010) doctrine: (1) The seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the illegal drug seized by the appehending officer to the investigating officer; (3) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and, (4) the turnover and submission of the marked illegal drug seized by the forensic chemist to the court. PEOPLE V. RICARDO REMIGIO Y ZAPANTA, G.R. No. 189277, Dec. 5, 2012, 2nd Div., Perez, J. (12) Remedial Law. – Exception to the doctrine of immutability of judgments. Respondents' personal obligation was only P45,000. Due to their former counsel's gross negligence in handling their cause, coupled with the RTC's erroneous, baseless and illegal award of 5% monthly interest, they now stand to lose their property and still owe petitioner a large amount of money. The CA held that as a court of justice and equity, it cannot in good conscience allow this unconscionable situation to prevail. Petitioner invokes the doctrine of immutability of judgment. Held, This Court is appalled by petitioner's invocation of the doctrine of immutability of judgment. Petitioner does not contest as she even admits that the RTC made a glaring mistake in awarding 5% monthly interest. Amazingly, she wants to benefit from such erroneous award. This Court cannot allow this injustice to

happen. LETICIA DIONA, ET AL. V. ROMEO A. BALANGUE, ET AL., G.R. No. 173559, Jan. 7, 2013, 2nd Div., Del Castillo, J. (13) Civil Law. – Art. 121, Family Code. Liabilities chargeable to conjugal partnership. Art. 121, Family Code, allows payment of the criminal indemnities imposed on the wife out of the partnership assets even before these are liquidated, after the enumerated responsibilites have been covered. At the time of liquidation, the offending spouse shall be charged for what has been paid for such purposes chargeable to said spouse. EFREN PANA V. HEIRS OF JOSE JUANITE, SR., ET AL., G.R. No. 164201, Dec. 10, 2012, 3rd Div. Abad, J. (14) Retirement Benefits. – Not available to COMELEC members who only had interim appointments that were not confirmed, since they cannot be deemed to have completed their term of office, since such service does not constitute a term, whether fixed or unexpired. EVALYN I. FETALINO, ET AL. V. COMELEC, G.R. No. 191890, Dec. 4, 2012, En Banc, Brion, J. (15) Labor Law. – Where the arbitration clause covers any dispute by reason of difference in interpretation of the contract, monetary claims under the contract are included, because the determination of the rights and obligations of the parties involves interpretation of the provisions of the contract. THE MANILA INSURANCE CO., INC. V. SPOUSES ROBERTO AND AIDA AMURAO, G.R. No. 179628, Jan. 16, 2013, 2nd Div., Del Castillo, J. (16) Political and Remedial Law. – Public officials who are sued may retain private counsel where personal liability is sought or may result. Applying the Alinsug doctrine (1993), ROMEO A. GONTANG, ETC. V. ENGR. CECILIA ALAYAN, G.R. No. 191691, Jan. 16, 2013, 2nd Div., Perlas-Bernabe, J.

Significant New Decisions/Supreme CourtMarch 19, 2013 at 11:34pm                                 BY ADOLFO S AZCUNA --COPYRIGHT 2013.       Proceedings against attorneys are private and confidential. The final order, however, is publishable. (1)       An attorney was fined P20,000 for distributing to media copies of her complaint for disbarment against another lawyer. The members of media, however, who published the fact of the filing of the complaint, were spared from sanction on the ground that the subject matter out of which the complaint arose was of public interest (the Ampatuan murder cases). (2)       Asking for separation pay does not prove abandonment of employment. (3)       The Rules allow a court to reverse its decision, even motu proprio, if it is incorrect and will cause injustice. (4)

       A statute fixing the value for payment of just compensation in eminent domain is not binding on the courts. (5)       In a contract TO sell, full payment of the purchase price is a suspensive condition, so that non-payment by the buyer prevents the condition from happening, and ownership remains with the seller, with no remedies to the buyer. (6)       An employee can be dismissed for the just causes stated in Art. 282 of the Labor Code.  But the employer has to give her two notices:  A first written notice that informs the employee of the particular acts or omissions for which her dismissal is sought; and--after the proper hearing-- a second written notice that informs her of the decision to dismiss her. (7)       Failure to observe the two-notice rule for dismissal is a denial of due process but the dismissal, if for a just cause, remains valid.  The employer is however liable for nominal damages, now fixed at P30,000, for violating the rule. (8)       Petitioner is disqualified to run for mayor in the 2010 elections for lack of residence.  Building a house in the town in not enough. (9)       Where the inculpatory evidence points to only one thing, the guilt of respondents as charged, the Court of Appeals erred in applying the equipoise rule. (10)       A foreign corporation not doing business in the Philippines can file before a Philippine court a petition for confirmation, recognition and enforcement of a foreign arbitral award.  The grounds are those set forth in Art. V of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958), which Convention has been incorporated into the our Alternative Dispute Resolution (ADR) Act of 2004, which is the applicable law. (11)       The rationale for the 12% interest in just compensation for properties taken by the State, is to compensate property owners for the income they would have made had they been properly compensated for their properties at the time of the taking. (12)       Proof of the victim's age in rape cases is outlined in PRUNA (2002) and reiterated in RULLEPA (2003):           1. The best evidence - original or certified true copy of certificate of live birth;          2. In its absence, similar authentic documents such as baptismal certificate or school records,      showing the date of birth;          3. If the above is lost, destroyed or not available, testimony, if clear and credible, of victim's mother or family member qualified to testify on the matter, applying the provisions of Sec. 40, Rule 130;          4. Absent these, the complainant's testimony will suffice if expressly and clearly admitted by the accused;

          5. The prosecution has the burden to prove the victim's age. Failure of the accused to object to testimonial evidence regarding age shall not be taken against him;          6. The trial court should always make a categorical finding as to the age of the victim. (13)      In Bigamy, the subsequent annulment of the first marriage is not a ground for exculpation. (14)      Only the Office of the Solicitor General can appeal he criminal aspect of a case (acquittal in libel in this case). (15)      The doctrine of strained relations in labor cases applied. (16)      The rule on forum shopping certification can be suspended for the sake of substantial justice. (17)      Where the elements of violation of B.P. 22 (Bouncing Check Law) already occurred, the pendency of a civil suit for rescission of the contract involved under Art. 1191, Civil Code, does not present a prejudicial question.  The contract is valid until rescinded, so there was no failure of consideration when the checks were dishonored.  The contract, subject to rescission, is only voidable not void. (18)      In cases of contributory negligence, the rule is a 60-40 sharing, so the plaintiff can only recover 60 %. (19)      To hold a head of office in Government liable for conspiracy in approving the acts of his subordinate in an anti-graft case, there must be showing of an "added reason" for him to scrutinize the details of the transactions in question. (20)      An example in drugs cases where the chain of custody was held broken (21) and an example where, despite failure to observe the niceties of procedure under the law, the conviction was upheld because the integrity and evidentiary value of the seized items were preserved. (22)      Piercing the veil of corporate fiction sustained on grounds of common ownership, identity of directors and officers, manner of keeping corporate books and records and methods of conducting business. (23)      Disallowed benefits received in good faith need not be reimbursed to the Government. (24)      Where a judgment has been executed pending appeal and it is subsequently reversed, partially or totally, or annulled--on appeal or otherwise--the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances. (25)      Ordinance No. 9503-2005 of the City of Cagayan de Oro is declared void.  It imposes a 10% tax on gross receipts of lease of poles during the preceding calendar year, whereas the Local Government Code limits the rate to not exceeding 2% of gross sales on receipts of the preceding year. (26)      A judicial claim for refund or credit of a tax can only be filed AFTER the lapse of 60 days from the filing of the administrative claim.  San Roque filed its judicial claim (for over P400 MM)  just 13 days after filing its administrative claim.  It, therefore,  cannot recove any refund or credit. (27) 

                                                            N O T E S       (1)   Sec. 18, Rule 139-B, Rules of Court.      (2)   Fortun v Quinsayas, G R No 194578, Feb 13. 2013.      (3)   Tegimenta Chemical v Oco, G R No 175369, Feb 27, 2013.      (4)   Ibid., citing Sec. 5(g), Rule 135, Rules of Court.      (5)   Spouses Cabahug v NPC, G R No 186069, Jan 30, 2013, referring to Sec. 3-A,              Republic Act No 6395 which provides that only 10% of the market value of a              property is due to the owner if it is subject to an easement of right of way.      (6)   Diego v Diego, G R No 179965, Feb 20, 2013.      (7)   Sang-an v Equator Knights, G R No 173169, Feb 13, 2013.     (8)   Ibid., applying the AGABON doctrine (2004).      (9)   Svetlana P Jalosjos v Comelec, G R No 193314, Feb 26, 2013.      (10) Ombudsman v Mapoy, G R No 197299, Feb 13, 2013.      (11) Tuna Processing v Philippine Kingford, G R No 185587, Feb 29, 2012.      (12) LBP v Obias, G R No 184406, Mar 14, 2012.      (13) Peo v Viojela, G R No 177140, Oct 17, 2012.      (14) Montanez v Cipriano, G R No 181089, Oct 22,2012.      (15) Bautista v Sharon G Cuneta-Pangilinan, G R No 189754, Oct 24, 2012.      (16) Martos v New San Jose Builders, G R No 192650, Oct 24, 2012.      (17) Rodriguez v  People, G R No 192799, Oct 24, 2012.      (18) Reyes v Rossi, G R No 159823, Feb 18, 2013.      (19) Allied Banking Corp v BPI, G R No 188363, Feb 27, 2013.      (20) Jaca v People, G R No 166967, and consolidated cases, Jan 28, 2013.      (21) Peo v Secreto, G R No 198115, Feb 27, 2013.      (22) Peo v Langcua, G R No 190343, Feb 6, 2013.      (23) Heirs of Fe Tan Uy v Int'l Exchange Bank, G R No 166282, and consolidated cases,              Feb 13, 2013.      (24) Nazareth v Hon Reynaldo A Villar, G R  No 188635, Jan 29, 2013.

      (25) Ventanilla Enterprises v Tan, G R No 180325, Feb 20, 2013.      (26) Cagayan Electric v City of Cagayan de Oro, G R No 191761, Nov 14, 2012.      (27) Com'r of Int Revenue v San Roque Power Corp, G R No 187485, and consolidated              cases, Feb 12, 2013.

)               A preliminary investigation is either executive (by a fiscal) to determine probable cause to file a case in court, or judicial (by a judge) to determine probable cause to issue a warrant of arrest.           The judicial type is called preliminary examination.           It's the duty of the judge to make it upon receiving a criminal complaint or information, so a motion for judicial determination of probable cause is superfluous.           In doing this (preliminary examination), a judge may           (1) dismiss the case outright, if from the records there's clearly no probable cause;           (2) issue a warrant of arrest, if he determines that probable cause exists, or           (3) ask the fiscal to submit more evidence. (Virginia de los Santos-Dio v. Hon. Court of Appeals, G.R. No. 178947; People v. Desmond, G.R. No. 179079, June 25, 2013. (2nd Div., Perlas-Bernabe, J.) 2)               Claim for refund of tax from a local government (City of Manila) requires  (1) written claim for refund/credit filed with local treasurer and (2) case or proceeding for refund filed within 2 years from date of payment of tax, fee or charge or from date taxpayer is entitled to a refund or credit. (Metro Manila Shipping Mecca Corp. v. Ms. Toledo, G.R. No. 190818, June 5, 2013. (2nd Div., Perlas-Bernabe, J.)  3)       The Paris Convention is recognized and protection is extended to parties thereto in trademarks. (Ecole de Cuisine Manille (Cordon Bleu of the Philippines), Inc. v. Renaud Cointreau & Cie and Le Cordon Bleu Int'l., B.V., G.R. No. 185830, June 5, 2013. (2nd Div., Perlas-Bernabe,J.)  4)       A disqualified candidate whose certificate of candidacy is cancelled after assumption of office is a de facto officer.  The cancellation/ disqualification thus creates no vacancy and no succession occurs.  The  de jure officer just assumes the office. (Svetlana P. Jalosjos v. Comelec, G.R. No. 193314, June 25, 2013. (En Banc, Sereno,C.J.,)       

(5)      Persons connected with the Court are barred from acquiring properties and rights “in litigation.”  (See, Art. 1491, par. 5, Civil Code)           The meaning of “in litigation” is explained.           The prohibition arises from the relationship of trust involved and seeks to prevent fraud.           It does not apply where the transaction occurs after the contest or litigation on the thing is over.           But property subject to estate proceedings, until such proceedings are closed and terminated, the debts paid, and the estate is distributed to the heirs, are still “in litigation” and covered by the prohibition. (Sabidong v. Solas, A.M. No. P-01-1448, June 25, 2013. (En Banc, Villarama, J.) 6)  Romeo G. Jalosjos is perpetually disqualified from running for public office.  No pardon or commutation of his perpetual disqualification was given. (Romeo G. Jalosjos v. Comelec, G.R. No. 205033, June 18, 2013 (En Banc, Perlas-Bernabe, J.) 7)       A. Rule  Where an employee is terminated for a just cause, no separation       pay is due,          B.  Exceptions  Except as an act of social  justice or on equitable grounds,          C.  Exceptions to the Exceptions  But not where the dismissal (1) was for serious misconduct or (2)  reflected on  the moral character of the employee.          (Unilever Phil., Inc. v. Maria Ruby M. Rivera, G.R. No. 201701, June 3, 2013. (3rd Div., Mendoza, J.).