Senior citizens deserve greater consideration | Inquirer Opinion

See - Senior citizens deserve greater consideration | Inquirer Opinion

"x x x.

By: Ramon Farolan, February 29th, 2016 02:13 AM

THERE ARE about seven million senior citizens in the country and if you include adult members of their families and close relatives, this figure easily comes up to at least 14 million voting citizens. They may not vote as a solid block but through word of mouth in their respective communities, they can influence others one way or another particularly when it comes to local issues.

* * *

Three months ago, senior citizen Oscar Lagman, wrote to complain about a business establishment in Mandaluyong City.

Briefly, Lagman had been buying an anti-inflammatory corticosteroid for his use from various Generics Pharmacy outlets since 2008. However, when he tried to purchase the same from Generics Pharmacy Qualigen, located at Star Mall Edsa corner Shaw Boulevard, he was informed that company policy did not allow senior citizen discounts for the product he wished to purchase.

Refusal by the outlet to honor his senior citizen status prompted Lagman to e-mail a complaint to Delfin Asistio, coordinator of the Office of Senior Citizens Affairs (Osca) of Mandaluyong City and to Social Welfare Secretary Dinky Soliman.

He received no response from them.

However, after I wrote about his experience, he received an e-mail reply from Secretary Soliman saying that “Osca of LGU (Mandaluyong City) and the concerned drugstore had been advised of the validity of my complaint and that the Senior Citizen Secretariat of the National Coordinating and Monitoring Board (NCMB) had been informed of the communication to Osca and the drugstore.”

Nilo Villaruz of Osca Mandaluyong City called up Lagman to ask for the details of his complaint. Apparently no one in his office had read Lagman’s letter-complaint.

After being asked by Lagman what action had been taken on the matter, Villaruz replied that their Business Permit Office had sent a communication to the drugstore concerned. When Lagman asked about any results in connection with the communication, no reply was received.

Three things are clear: first, Secretary Soliman considers Lagman’s complaint valid and informed Osca Mandaluyong City and Generics Pharmacy Qualigen of their position; second, Osca Mandaluyong City by inaction failed to uphold the law; and third, the NCMB failed to take any action on the matter. It probably ended up as a statistic in their office.

It has been three months since the complaint of Lagman was sent to the government offices concerned. He has not heard from them since the initial reaction when I wrote about the matter. Generics Pharmacy Qualigen continues to operate even as it refuses to honor the senior citizens law. Unfortunately, for the great majority of our people, the experience of Lagman is typical of the bureaucracy and is more the rule rather than the exception. We have so many laws, but proper implementation and enforcement is either poor or nonexistent.

It is basically the local government unit, in this case Mandaluyong City, headed by Mayor Benhur Abalos, that is responsible for enforcement. If the city executives do not do their duty or fail to carry out their responsibilities, the senior citizen suffers.

What should senior citizens do?

We shall be electing our officials, local and national, come May. Let us use our vote wisely. This is perhaps the only occasion when we can hold our officials accountable for what they have done or what they have failed to do.

DO NOT VOTE for officials who ignore complaints from their constituents.

DO NOT VOTE for officials who pay lip service to the needs and concerns of their constituents and become deaf and dumb once in office.

VOTE for change if one is not satisfied with the performance of incumbents.

What is also needed is an example. We need to see business establishments being penalized for violations of the senior citizens law. Lack of punishment for offenders only perpetuates a climate of impunity. Fear of retribution is the best deterrent against any form of criminal activity.

* * *

What else can be done for the benefit of our senior citizens as well as for persons with disabilities (PWDs)?

In Congress, we have a party-list group with the acronym “Senior Citizens.” Their objective is to assist senior citizens in the enjoyment of their rights and benefits under the law. They are supposed to serve as the voice of the senior citizen sector in Congress. One of their more important functions is to sponsor and implement projects geared toward the enhancement of the general welfare of senior citizens.

What have they accomplished so far?

Not much, since they have been quarrelling among themselves for some time now. In fact, a number of representatives have been facing charges of corruption.

But if they have the time and the inclination to do some work on behalf of their constituents, let me provide some ideas for them to chew on.

• In Brazil a law requires that all private business and government facilities provide immediate and “differentiated” attention to people aged 60 and over. To comply with the law, many establishments have set up exclusive service windows known as “preferential lines” to attend to senior citizens and PWDs. The Brazilian Constitution says the government must defend the “dignity” of the elderly and provide them with free public transportation.

The city of Fortaleza in the Brazilian state of Ceara goes even further. It passed an ordinance in 2014 allowing seniors and PWDs to cut to the front of any line or queue. Since the law went into effect complaints have produced 114 fines totaling some $20,000.

• Instead of an Osca, what is needed is a “Senior Citizen Advocacy Agency” that will address in a speedy manner all complaints of senior citizens and PWDs. It is safe to say that Osca in its present form does not satisfy the needs and concerns of senior citizens. There are better ways of addressing the problem. It only requires sincerity, initiative and determination, particularly on the part of local executives, to bring about badly needed improvements in the implementation of the senior citizens law.

x x x."

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The prohibition in the Constitution applies only to ownership of land by aliens. It does not extend to immovable or real property as defined under Article 415 of the Civil Code.

G.R. No. 124293             January 31, 2005

J.G. SUMMIT HOLDINGS, INC., petitioner, vs. COURT OF APPEALS; COMMITTEE ON PRIVATIZATION, its Chairman and Members; ASSET PRIVATIZATION TRUST; and PHILYARDS HOLDINGS, INC., respondents.

“x x x.

On the landholding issue, J.G. Summit submits that since PHILSECO is a landholding company, KAWASAKI could exercise its right of first refusal only up to 40% of the shares of PHILSECO due to the constitutional prohibition on landholding by corporations with more than 40% foreign-owned equity. It further argues that since KAWASAKI already held at least 40% equity in PHILSECO, the right of first refusal was inutile and as such, could not subsequently be converted into the right to top. ³⁷ Petitioner also asserts that, at present, PHILSECO continues to violate the constitutional provision on landholdings as its shares are more than 40% foreign-owned.³⁸ PHILYARDS admits that it may have previously held land but had already divested such landholdings.³⁹ It contends, however, that even if PHILSECO owned land, this would not affect the right of first refusal but only the exercise thereof. If the land is retained, the right of first refusal, being a property right, could be assigned to a qualified party. In the alternative, the land could be divested before the exercise of the right of first refusal. In the case at bar, respondents assert that since the right of first refusal was validly converted into a right to top, which was exercised not by KAWASAKI, but by PHILYARDS which is a Filipino corporation (i.e., 60% of its shares are owned by Filipinos), then there is no violation of the Constitution.⁴⁰ At first, it would seem that questions of fact beyond cognizance by this Court were involved in the issue. However, the records show that PHILYARDS admits it had owned land up until the time of the bidding.⁴¹ Hence, the only issue is whether KAWASAKI had a valid right of first refusal over PHILSECO shares under the JVA considering that PHILSECO owned land until the time of the bidding and KAWASAKI already held 40% of PHILSECO’s equity.

We uphold the validity of the mutual rights of first refusal under the JVA between KAWASAKI and NIDC. First of all, the right of first refusal is a property right of PHILSECO shareholders, KAWASAKI and NIDC, under the terms of their JVA. This right allows them to purchase the shares of their co-shareholder before they are offered to a third party. The agreement of co-shareholders to mutually grant this right to each other, by itself, does not constitute a violation of the provisions of the Constitution limiting land ownership to Filipinos and Filipino corporations. As PHILYARDS correctly puts it, if PHILSECO still owns land, the right of first refusal can be validly assigned to a qualified Filipino entity in order to maintain the 60%-40% ratio. This transfer, by itself, does not amount to a violation of the Anti-Dummy Laws, absent proof of any fraudulent intent. The transfer could be made either to a nominee or such other party which the holder of the right of first refusal feels it can comfortably do business with. Alternatively, PHILSECO may divest of its landholdings, in which case KAWASAKI, in exercising its right of first refusal, can exceed 40% of PHILSECO’s equity. In fact, it can even be said that if the foreign shareholdings of a landholding corporation exceeds 40%, it is not the foreign stockholders’ ownership of the shares which is adversely affected but the capacity of the corporation to own land – that is, the corporation becomes disqualified to own land. This finds support under the basic corporate law principle that the corporation and its stockholders are separate juridical entities. In this vein, the right of first refusal over shares pertains to the shareholders whereas the capacity to own land pertains to the corporation. Hence, the fact that PHILSECO owns land cannot deprive stockholders of their right of first refusal. No law disqualifies a person from purchasing shares in a landholding corporation even if the latter will exceed the allowed foreign equity, what the law disqualifies is the corporation from owning land. This is the clear import of the following provisions in the Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

                   xxx xxx xxx

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.⁴²(emphases supplied)

The petitioner further argues that "an option to buy land is void in itself (Philippine Banking Corporation v. Lui She, 21 SCRA 52 [1967]). The right of first refusal granted to KAWASAKI, a Japanese corporation, is similarly void. Hence, the right to top, sourced from the right of first refusal, is also void."⁴³ Contrary to the contention of petitioner, the case of Lui She did not that say "an option to buy land is void in itself," for we ruled as follows:

x x x To be sure, a lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy real property on condition that he is granted Philippine citizenship. As this Court said in Krivenko vs. Register of Deeds:

[A]liens are not completely excluded by the Constitution from the use of lands for residential purposes. Since their residence in the Philippines is temporary, they may be granted temporary rights such as a lease contract which is not forbidden by the Constitution. Should they desire to remain here forever and share our fortunes and misfortunes, Filipino citizenship is not impossible to acquire.

But if an alien is given not only a lease of, but also an option to buy, a piece of land, by virtue of which the Filipino owner cannot sell or otherwise dispose of his property, this to last for 50 years, then it becomes clear that the arrangement is a virtual transfer of ownership whereby the owner divests himself in stages not only of the right to enjoy the land (jus possidendi, jus utendi, jus fruendi and jus abutendi) but also of the right to dispose of it (jus disponendi) — rights the sum total of which make up ownership. It is just as if today the possession is transferred, tomorrow, the use, the next day, the disposition, and so on, until ultimately all the rights of which ownership is made up are consolidated in an alien. And yet this is just exactly what the parties in this case did within this pace of one year, with the result that Justina Santos'[s] ownership of her property was reduced to a hollow concept. If this can be done, then the Constitutional ban against alien landholding in the Philippines, as announced in Krivenko vs. Register of Deeds, is indeed in grave peril.⁴⁴ (emphases supplied; Citations omitted)

In Lui She, the option to buy was invalidated because it amounted to a virtual transfer of ownership as the owner could not sell or dispose of his properties. The contract in Lui She prohibited the owner of the land from selling, donating, mortgaging, or encumbering the property during the 50-year period of the option to buy. This is not so in the case at bar where the mutual right of first refusal in favor of NIDC and KAWASAKI does not amount to a virtual transfer of land to a non-Filipino. In fact, the case at bar involves a right of first refusal over shares of stock while the Lui She case involves an option to buy the land itself. As discussed earlier, there is a distinction between the shareholder’s ownership of shares and the corporation’s ownership of land arising from the separate juridical personalities of the corporation and its shareholders.

We note that in its Motion for Reconsideration, J.G. Summit alleges that PHILSECO continues to violate the Constitution as its foreign equity is above 40% and yet owns long-term leasehold rights which are real rights.⁴⁵It cites Article 415 of the Civil Code which includes in the definition of immovable property, "contracts for public works, and servitudes and other real rights over immovable property."⁴⁶ Any existing landholding, however, is denied by PHILYARDS citing its recent financial statements.⁴⁷ First, these are questions of fact, the veracity of which would require introduction of evidence. The Court needs to validate these factual allegations based on competent and reliable evidence. As such, the Court cannot resolve the questions they pose. X x x.

X x x.

As correctly observed by the public respondents, the prohibition in the Constitution applies only to ownership of land.⁴⁸ It does not extend to immovable or real property as defined under Article 415 of the Civil Code. Otherwise, we would have a strange situation where the ownership of immovable property such as trees, plants and growing fruit attached to the land⁴⁹ would be limited to Filipinos and Filipino corporations only.

X x x.”

Art. 1471, Civil Code - If the price is simulated, the sale is void, but the act may be shown to have been in reality a donation, or some other act or contract.

FELIX TING HO, JR.,  MERLA TING HO BRADEN, JUANA TING HO & LYDIA TING HO BELENZO vs. VICENTE TENG GUI, G.R. No. 130115, July 16, 2008

“x x x.

Coming now to the issue of ownership of the properties erected on the subject lot, the Court agrees with the finding of the trial court, as affirmed by the appellate court, that the series of transactions resorted to by the deceased were simulated in order to preserve the properties in the hands of the family. The records show that during all the time that the properties were allegedly sold to the spouses Victoria Cabasal and Gregorio Fontela in 1958 and the subsequent sale of the same to respondent in 1961, the petitioners and respondent, along with their parents, remained in possession and continued to live in said properties.

However, the trial court concluded that:

In fairness to the defendant, although the Deeds of Sale executed by Felix Ting Ho regarding the improvements in favor of Victoria Cabasal and Gregorio Fontela and the subsequent transfer of the same by Gregorio Fontela and Victoria Cabasal to the defendant are all simulated, yet, pursuant to Article 1471 of the New Civil Code it can be assumed that the intention of Felix Ting Ho in such transaction was to give and donate the improvements to his eldest son the defendant Vicente Teng Gui ^[20]

Its finding was based on Article 1471 of the Civil Code, which provides that:

Art. 1471. If the price is simulated, the sale is void, but the act may be shown to have been in reality a donation, or some other act or contract.^[21]

The Court holds that the reliance of the trial court on the provisions of Article 1471 of the Civil Code to conclude that the simulated sales were a valid donation to the respondent is misplaced because its finding was based on a mere assumption when the law requires positive proof.

The respondent was unable to show, and the records are bereft of any evidence, that the simulated sales of the properties were intended by the deceased to be a donation to him. Thus, the Court holds that the two-storey residential house, two-storey residential building and sari-sari store form part of the estate of the late spouses Felix Ting Ho and Leonila Cabasal, entitling the petitioners to a four-fifths (4/5) share thereof.

 X xx.”

Footnotes:

^[1] Under Rule 45 of the 1997 Rules of Civil Procedure.

^[9] Article 1471 of the Civil Code provides:

Art. 1471. If the price is simulated, the sale is void, but the act may be shown to have been in reality a donation, or some other act or contract.

^[14] 79 Phil. 461 (1947).

^[15] Id. at 474 (emphasis supplied).

^[16] Property Registration Decree, P.D. No. 1529, 103.

^[17] This rule does not apply where the land covered by a patent issued by the Government had previously been determined in a registration proceeding and adjudicated in favor of a private individual other than the patentee, which situation is not present in this case.

^[18] G.R. No. 149615, August 29, 2006, 500 SCRA 65.

^[19] Id. at 68.

^[21] Civil Code, Art. 1471.

The prohibition against an alien from owning lands of the public domain is absolute and not even an implied trust can be permitted to arise on equity considerations

FELIX TING HO, JR.,  MERLA TING HO BRADEN, JUANA TING HO & LYDIA TING HO BELENZO vs. VICENTE TENG GUI, G.R. No. 130115, July 16, 2008

“x x x.

Nonetheless, petitioners invoke equity considerations and claim that the ruling of the RTC that an implied trust was created between respondent and their father with respect to the subject lot should be upheld.

This contention must fail because the prohibition against an alien from owning lands of the public domain is absolute and not even an implied trust can be permitted to arise on equity considerations.

In the case of Muller v. Muller,^[18] wherein the respondent, a German national, was seeking reimbursement of funds claimed by him to be given in trust to his petitioner wife, a Philippine citizen, for the purchase of a property in Antipolo, the Court, in rejecting the claim, ruled that:

Respondent was aware of the constitutional prohibition and expressly admitted his knowledge thereof to this Court. He declared that he had the Antipolo property titled in the name of the petitioner because of the said prohibition. His attempt at subsequently asserting or claiming a right on the said property cannot be sustained.

The Court of Appeals erred in holding that an implied trust was created and resulted by operation of law in view of petitioner's marriage to respondent. Save for the exception provided in cases of hereditary succession, respondent's disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of the fraud. To hold otherwise would allow circumvention of the constitutional prohibition.

Invoking the principle that a court is not only a court of law but also a court of equity, is likewise misplaced. It has been held that equity as a rule will follow the law and will not permit that to be done indirectly which, because of public policy, cannot be done directly...^[19]

X x x.”

Registration of grants and patents involving public lands is governed by Section 122 of Act No. 496, which was subsequently amended by Section 103 of Presidential Decree No. 1529

FELIX TING HO, JR.,  MERLA TING HO BRADEN, JUANA TING HO & LYDIA TING HO BELENZO vs. VICENTE TENG GUI, G.R. No. 130115, July 16, 2008

"X x x.

Registration of grants and patents involving public lands is governed by Section 122 of Act No. 496, which was subsequently amended by Section 103 of Presidential Decree No. 1529, viz:

Sec. 103. Certificate of title pursuant to patents.Whenever public land is by the Government alienated, granted or conveyed to any person, the same shall be brought forthwith under the operation of this Decree.It shall be the duty of the official issuing the instrument of alienation, grant, patent or conveyance in behalf of the Government to cause such instrument to be filed with the Register of Deeds of the province or city where the land lies, and to be there registered like other deeds and conveyance, whereupon a certificate of title shall be entered as in other cases of registered land, and an owners duplicate issued to the grantee. The deeds, grant, patent or instrument of conveyance from the Government to the grantee shall not take effect as a conveyance or bind the land, but shall operate only as a contract between the Government and the grantee and as evidence of authority to the Register of Deeds to make registration. It is the act of registration that shall be the operative act to affect and convey the land, and in all cases under this Decree registration shall be made in the office of the Register of Deeds of the province or city where the land lies. The fees for registration shall be paid by the grantee. After due registration and issuance of the certificate of title, such land shall be deemed to be registered land to all intents and purposes under this Decree.^[16] (Emphasis supplied)

Under the law, a certificate of title issued pursuant to any grant or patent involving public land is as conclusive and indefeasible as any other certificate of title issued to private lands in the ordinary or cadastral registration proceeding. The effect of the registration of a patent and the issuance of a certificate of title to the patentee is to vest in him an incontestable title to the land, in the same manner as if ownership had been determined by final decree of the court, and the title so issued is absolutely conclusive and indisputable, and is not subject to collateral attack.^[17]

X x x.”

The right to acquire lands of the public domain is reserved for Filipino citizens or corporations at least sixty percent of the capital of which is owned by Filipinos

FELIX TING HO, JR.,  MERLA TING HO BRADEN, JUANA TING HO & LYDIA TING HO BELENZO vs. VICENTE TENG GUI, G.R. No. 130115, July 16, 2008

 “x x x. 

With regard to Lot No. 418, Ts-308, Article XIII, Section 1 of the 1935 Constitution states:

Section 1. All agricultural timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution (Emphasis supplied)

Our fundamental law cannot be any clearer. The right to acquire lands of the public domain is reserved for Filipino citizens or corporations at least sixty percent of the capital of which is owned by Filipinos. Thus, in Krivenko v. Register of Deeds,^[14] the Court enunciated that:

Perhaps the effect of our construction is to preclude aliens, admitted freely into the Philippines from owning sites where they may build their homes. But if this is the solemn mandate of the Constitution, we will not attempt to compromise it even in the name of amity or equity. We are satisfied, however, that aliens are not completely excluded by the Constitution from the use of lands for residential purposes. Since their residence in the Philippines is temporary, they may be granted temporary rights such as a lease contract which is not forbidden by the Constitution. Should they desire to remain here forever and share our fortunes and misfortunes, Filipino citizenship is not impossible to acquire.^[15]

X x x.

Ownership of lands by aliens.- "We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land."

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ, G.R. No. L-27952 February 15, 1982

“x x x.

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.

X x x.:

Art. 863, Civil Code -. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator.

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ, G.R. No. L-27952 February 15, 1982

“x x x.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation. by providing that the substitution shall not go beyond one degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

X x x.”

Art. 900, Civil Code - "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate."

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ, G.R. No. L-27952 February 15, 1982

 “x x x.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of his estate over which he could impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

X x x.”

To be sure, a lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy real property on condition that he is granted Philippine citizenship

PHILIPPINE BANKING CORPORATION, representing the estate of JUSTINA SANTOS Y CANON FAUSTINO, deceased vs. LUI SHE in her own behalf and as administratrix of the intestate estate of Wong Heng, deceased, G.R. No. L-17587, September 12, 1967

“x x x.

It is next contended that the lease contract was obtained by Wong in violation of his fiduciary relationship with Justina Santos, contrary to article 1646, in relation to article 1941 of the Civil Code, which disqualifies "agents (from leasing) the property whose administration or sale may have been entrusted to them." But Wong was never an agent of Justina Santos. The relationship of the parties, although admittedly close and confidential, did not amount to an agency so as to bring the case within the prohibition of the law.

X x x.

Taken singly, the contracts show nothing that is necessarily illegal, but considered collectively, they reveal an insidious pattern to subvert by indirection what the Constitution directly prohibits. To be sure, a lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy real property on condition that he is granted Philippine citizenship. As this Court said in Krivenko v. Register of Deeds:²⁰

[A]liens are not completely excluded by the Constitution from the use of lands for residential purposes. Since their residence in the Philippines is temporary, they may be granted temporary rights such as a lease contract which is not forbidden by the Constitution. Should they desire to remain here forever and share our fortunes and misfortunes, Filipino citizenship is not impossible to acquire.

But if an alien is given not only a lease of, but also an option to buy, a piece of land, by virtue of which the Filipino owner cannot sell or otherwise dispose of his property,²¹ this to last for 50 years, then it becomes clear that the arrangement is a virtual transfer of ownership whereby the owner divests himself in stages not only of the right to enjoy the land ( jus possidendi, jus utendi, jus fruendi and jus abutendi) but also of the right to dispose of it ( jus disponendi) — rights the sum total of which make up ownership. It is just as if today the possession is transferred, tomorrow, the use, the next day, the disposition, and so on, until ultimately all the rights of which ownership is made up are consolidated in an alien. And yet this is just exactly what the parties in this case did within the space of one year, with the result that Justina Santos' ownership of her property was reduced to a hollow concept. If this can be done, then the Constitutional ban against alien landholding in the Philippines, as announced in Krivenko v. Register of Deeds,²² is indeed in grave peril.

It does not follow from what has been said, however, that because the parties are in pari delicto they will be left where they are, without relief. For one thing, the original parties who were guilty of a violation of the fundamental charter have died and have since been substituted by their administrators to whom it would be unjust to impute their guilt.²³ For another thing, and this is not only cogent but also important, article 1416 of the Civil Code provides, as an exception to the rule on pari delicto, that "When the agreement is not illegal per se but is merely prohibited, and the prohibition by law is designed for the protection of the plaintiff, he may, if public policy is thereby enhanced, recover what he has paid or delivered." The Constitutional provision that "Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines"²⁴ is an expression of public policy to conserve lands for the Filipinos. As this Court said in Krivenko:

It is well to note at this juncture that in the present case we have no choice. We are construing the Constitution as it is and not as we may desire it to be. Perhaps the effect of our construction is to preclude aliens admitted freely into the Philippines from owning sites where they may build their homes. But if this is the solemn mandate of the Constitution, we will not attempt to compromise it even in the name of amity or equity . . . .

For all the foregoing, we hold that under the Constitution aliens may not acquire private or public agricultural lands, including residential lands, and, accordingly, judgment is affirmed, without costs.²⁵

That policy would be defeated and its continued violation sanctioned if, instead of setting the contracts aside and ordering the restoration of the land to the estate of the deceased Justina Santos, this Court should apply the general rule of pari delicto. To the extent that our ruling in this case conflicts with that laid down in Rellosa v. Gaw Chee Hun²⁶ and subsequent similar cases, the latter must be considered as pro tanto qualified.

X x x.”

That the land could not ordinarily be levied upon while in custodia legis does not mean that one of the heirs may not sell the right, interest or participation which he has or might have in the lands under administration.

PHILIPPINE BANKING CORPORATION, representing the estate of JUSTINA SANTOS Y CANON FAUSTINO, deceased vs. LUI SHE in her own behalf and as administratrix of the intestate estate of Wong Heng, deceased, G.R. No. L-17587, September 12, 1967

“x x x.

Nor is there merit in the claim that as the portion of the property formerly owned by the sister of Justina Santos was still in the process of settlement in the probate court at the time it was leased, the lease is invalid as to such portion. Justina Santos became the owner of the entire property upon the death of her sister Lorenzo on September 22, 1957 by force of article 777 of the Civil Code. Hence, when she leased the property on November 15, she did so already as owner thereof. As this Court explained in upholding the sale made by an heir of a property under judicial administration:

That the land could not ordinarily be levied upon while in custodia legis does not mean that one of the heirs may not sell the right, interest or participation which he has or might have in the lands under administration. The ordinary execution of property in custodia legis is prohibited in order to avoid interference with the possession by the court. But the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise stands in the way of such administration.⁶

X x x.”

Article 1308, Civil Code, provides that "the contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them."

PHILIPPINE BANKING CORPORATION, representing the estate of JUSTINA SANTOS Y CANON FAUSTINO, deceased, vs. LUI SHE in her own behalf and as administratrix of the intestate estate of Wong Heng, deceased, G.R. No. L-17587, September 12, 1967

“x x x.

Justina Santos maintained — now reiterated by the Philippine Banking Corporation — that the lease contract (Plff Exh. 3) should have been annulled along with the four other contracts (Plff Exhs. 4-7) because it lacks mutuality; because it included a portion which, at the time, was in custodia legis; because the contract was obtained in violation of the fiduciary relations of the parties; because her consent was obtained through undue influence, fraud and misrepresentation; and because the lease contract, like the rest of the contracts, is absolutely simulated.

Paragraph 5 of the lease contract states that "The lessee may at any time withdraw from this agreement." It is claimed that this stipulation offends article 1308 of the Civil Code which provides that "the contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them."

We have had occasion to delineate the scope and application of article 1308 in the early case of Taylor v. Uy Tieng Piao.1 We said in that case:

Article 1256 [now art. 1308] of the Civil Code in our opinion creates no impediment to the insertion in a contract for personal service of a resolutory condition permitting the cancellation of the contract by one of the parties. Such a stipulation, as can be readily seen, does not make either the validity or the fulfillment of the contract dependent upon the will of the party to whom is conceded the privilege of cancellation; for where the contracting parties have agreed that such option shall exist, the exercise of the option is as much in the fulfillment of the contract as any other act which may have been the subject of agreement. Indeed, the cancellation of a contract in accordance with conditions agreed upon beforehand is fulfillment.2

And so it was held in Melencio v. Dy Tiao Lay 3 that a "provision in a lease contract that the lessee, at any time before he erected any building on the land, might rescind the lease, can hardly be regarded as a violation of article 1256 [now art. 1308] of the Civil Code."

The case of Singson Encarnacion v. Baldomar 4 cannot be cited in support of the claim of want of mutuality, because of a difference in factual setting. In that case, the lessees argued that they could occupy the premises as long as they paid the rent. This is of course untenable, for as this Court said, "If this defense were to be allowed, so long as defendants elected to continue the lease by continuing the payment of the rentals, the owner would never be able to discontinue it; conversely, although the owner should desire the lease to continue the lessees could effectively thwart his purpose if they should prefer to terminate the contract by the simple expedient of stopping payment of the rentals." Here, in contrast, the right of the lessee to continue the lease or to terminate it is so circumscribed by the term of the contract that it cannot be said that the continuance of the lease depends upon his will. At any rate, even if no term had been fixed in the agreement, this case would at most justify the fixing of a period5 but not the annulment of the contract.

X x x.”

Alien spouse cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the property despite the constitutional prohibition.

                              

IN RE: PETITION FOR SEPARATION OF PROPERTY ELENA BUENAVENTURA MULLER vs. HELMUT MULLER, G.R. No. 149615, August 29, 2006.

“x x x.

Petitioner contends that respondent, being an alien, is disqualified to own private lands in the Philippines; that respondent was aware of the constitutional prohibition but circumvented the same; and that respondent’s purpose for filing an action for separation of property is to obtain exclusive possession, control and disposition of the Antipolo property.

Respondent claims that he is not praying for transfer of ownership of the Antipolo property but merely reimbursement; that the funds paid by him for the said property were in consideration of his marriage to petitioner; that the funds were given to petitioner in trust; and that equity demands that respondent should be reimbursed of his personal funds.

The issue for resolution is whether respondent is entitled to reimbursement of the funds used for the acquisition of the Antipolo property.

The petition has merit.

Section 7, Article XII of the 1987 Constitution states:

Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain. Hence, they are also disqualified from acquiring private lands. ⁹ The primary purpose of the constitutional provision is the conservation of the national patrimony. In the case of Krivenko v. Register of Deeds, ¹⁰ the Court held:

Under section 1 of Article XIII of the Constitution, "natural resources, with the exception of public agricultural land, shall not be alienated," and with respect to public agricultural lands, their alienation is limited to Filipino citizens. But this constitutional purpose conserving agricultural resources in the hands of Filipino citizens may easily be defeated by the Filipino citizens themselves who may alienate their agricultural lands in favor of aliens. It is partly to prevent this result that section 5 is included in Article XIII, and it reads as follows:

"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines."

This constitutional provision closes the only remaining avenue through which agricultural resources may leak into aliens’ hands. It would certainly be futile to prohibit the alienation of public agricultural lands to aliens if, after all, they may be freely so alienated upon their becoming private agricultural lands in the hands of Filipino citizens. x x x

x x x x

If the term "private agricultural lands" is to be construed as not including residential lots or lands not strictly agricultural, the result would be that "aliens may freely acquire and possess not only residential lots and houses for themselves but entire subdivisions, and whole towns and cities," and that "they may validly buy and hold in their names lands of any area for building homes, factories, industrial plants, fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses, playgrounds, airfields, and a host of other uses and purposes that are not, in appellant’s words, strictly agricultural." (Solicitor General’s Brief, p. 6.) That this is obnoxious to the conservative spirit of the Constitution is beyond question.

Respondent was aware of the constitutional prohibition and expressly admitted his knowledge thereof to this Court.¹¹ He declared that he had the Antipolo property titled in the name of petitioner because of the said prohibition. ¹²His attempt at subsequently asserting or claiming a right on the said property cannot be sustained.

The Court of Appeals erred in holding that an implied trust was created and resulted by operation of law in view of petitioner’s marriage to respondent. Save for the exception provided in cases of hereditary succession, respondent’s disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of the fraud. ¹³ To hold otherwise would allow circumvention of the constitutional prohibition.

Invoking the principle that a court is not only a court of law but also a court of equity, is likewise misplaced. It has been held that equity as a rule will follow the law and will not permit that to be done indirectly which, because of public policy, cannot be done directly. ¹⁴ He who seeks equity must do equity, and he who comes into equity must come with clean hands. The latter is a frequently stated maxim which is also expressed in the principle that he who has done inequity shall not have equity. It signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue. ¹⁵

Thus, in the instant case, respondent cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the property despite the constitutional prohibition.

Further, the distinction made between transfer of ownership as opposed to recovery of funds is a futile exercise on respondent’s part. To allow reimbursement would in effect permit respondent to enjoy the fruits of a property which he is not allowed to own. Thus, it is likewise proscribed by law. As expressly held in Cheesman v. Intermediate Appellate Court: ¹⁶

Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the 1973 Constitution ordains that, "Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain." Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition. Thus, assuming that it was his intention that the lot in question be purchased by him and his wife, he acquired no right whatever over the property by virtue of that purchase; and in attempting to acquire a right or interest in land, vicariously and clandestinely, he knowingly violated the Constitution; the sale as to him was null and void. In any event, he had and has no capacity or personality to question the subsequent sale of the same property by his wife on the theory that in so doing he is merely exercising the prerogative of a husband in respect of conjugal property. To sustain such a theory would permit indirect controversion of the constitutional prohibition. If the property were to be declared conjugal, this would accord to the alien husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not permit him to have.

As already observed, the finding that his wife had used her own money to purchase the property cannot, and will not, at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife had used conjugal funds to make the acquisition, the considerations just set out to militate, on high constitutional grounds, against his recovering and holding the property so acquired, or any part thereof. And whether in such an event, he may recover from his wife any share of the money used for the purchase or charge her with unauthorized disposition or expenditure of conjugal funds is not now inquired into; that would be, in the premises, a purely academic exercise. (Emphasis added)

X x x.”

Footnotes

⁹ Ong Ching Po v. Court of Appeals, G.R. Nos. 113472-73, December 20, 1994, 239 SCRA 341, 346.

¹⁰ 79 Phil. 461, 473, 476 (1947).

¹³ Morales v. Court of Appeals, G.R. No. 117228, June 19, 1997, 274 SCRA 282, 299.

¹⁴ Frenzel v. Catito, 453 Phil. 885, 905 (2003).

¹⁵ University of the Philippines v. Catungal, Jr., 338 Phil. 728, 743-744 (1997).

¹⁶ G.R. No. 74833, January 21, 1991, 193 SCRA 93, 103-104.

Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

THOMAS C. CHEESMAN vs. INTERMEDIATE APPELLATE COURT and ESTELITA PADILLA, G.R. No. 74833, January 21, 1991

“x x x.

Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the 1973 Constitution ordains that, "Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain." 30Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition. Thus, assuming that it was his intention that the lot in question be purchased by him and his wife, he acquired no right whatever over the property by virtue of that purchase; and in attempting to acquire a right or interest in land, vicariously and clandestinely, he knowingly violated the Constitution; the sale as to him was null and void. 31 In any event, he had and has no capacity or personality to question the subsequent sale of the same property by his wife on the theory that in so doing he is merely exercising the prerogative of a husband in respect of conjugal property. To sustain such a theory would permit indirect controversion of the constitutional prohibition. If the property were to be declared conjugal, this would accord to the alien husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not permit him to have.

As already observed, the finding that his wife had used her own money to purchase the property cannot, and will not, at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife had used conjugal funds to make the acquisition, the considerations just set out militate, on high constitutional grounds, against his recovering and holding the property so acquired or any part thereof. And whether in such an event, he may recover from his wife any share of the money used for the purchase or charge her with unauthorized disposition or expenditure of conjugal funds is not now inquired into; that would be, in the premises, a purely academic exercise. An equally decisive consideration is that Estelita Padilla is a purchaser in good faith, both the Trial Court and the Appellate Court having found that Cheesman's own conduct had led her to believe the property to be exclusive property of the latter's wife, freely disposable by her without his consent or intervention. An innocent buyer for value, she is entitled to the protection of the law in her purchase, particularly as against Cheesman, who would assert rights to the property denied him by both letter and spirit of the Constitution itself.

X x x.”

Footnotes

23 Ramos, et al. vs. Pepsi-Cola Bottling Co. of the P.I., et al., 19 SCRA 289, 292, citing II Bouvier's Law Dictionary, 2784, and II Martin, Rules of Court, 255; See also, Francisco, The Rules of Court, Annotated and Commented, 1968, ed., Vol. III, pp. 485- 488.

24 SEE Lim v. Calaguas, 83 Phil. 796, 799, and Mackay Radio & Tel. Co. v. Rich, 28 SCRA 699, 705, cited in Moran, Comments on the Rules, 1979 ed., p. 474.

25 Sec. 2, Rule 45, Rules of Court; Villanueva v. IAC, G.R. No. 67582, Oct. 29, 1987; Andres v. Manufacturers Hanover & Trust Corp., G.R. No. 82670, Sept. 15, 1989.

26 See Moran, Comments on the Rules, 1979 ed., Vol. 2, 472-473, citing Evangelista & Co. v. Abad Santos, June 28, 1973, 51 SCRA 416, 419; See, too, Francisco, op. cit., p. 489; Korean Airlines, Ltd. v. C.A., G.R. No. 61418, Sept. 24, 1987.

27 Moran, op. cit., p. 473, citing Sta. Ana v. Hernandez, 18 SCRA 973, 978.

28 SEE Ramos v. Pepsi-Cola Bottling Co. of the Phil., 19 SCRA 289, 291-292.

29 Sec. 1, Rule 41, Rules of Court.

30 Identical to Sec. 7, Art. XII of the 1987 Constitution, and Sec. 5, ART. XIII of the 1935 Constitution (except that the latter section refers not simply to "private land" but to "private agricultural land".

31 Rellosa v. Gaw Chee Hun, 93 Phil. 827 (1953) applying the pari delicto rule to disallow the Filipino vendor from recovering the land sold to an alien (See also Bautista v. Uy Isabelo, 93 Phil. 843; Talento v. Makiki, 93 Phil. 855; Caoile v. Chiao Peng, 93 Phil. 861; Arambulo v. Cua So, 95 Phil. 749; Dinglasan v. Lee Bun Ting, 99 Phil. 427); and Philippine Banking Corporation v. Lui She, 21 SCRA 52, which declared that the pari delicto rule should not apply where the original parties had already died and had been succeeded by administrators to whom it would have been unjust and to impute guilt, and recovery would enhance the declared public policy of preserving lands for Filipinos.

A case of reckless imprudence; respondent is OFW abroad; sample affidavit of wife-witness with special power of attorney

    AFFIDAVIT

OF xxx IN HER CAPACITY AS CO-COMPLAINING WITNESS IN NPS DOCKET NO. xxx IN SUPPORT OF HER HUSBAND xxx; AND AS CORROBORATING WITNESS FOR HER RESPONDENT HUSBAND

xxx IN NPS DOCKET No. xxx.

§  WITH -

“MOTION TO INTERVENE” AS CO-COMPLAINANT OF HER HUSBAND xxx IN CASE NO. xxx BEING THE REGISTERED OWNER OF THE DAMAGED XXX XXX WITH PLATE NO xxx.

          I, xxx, 40 years old, Filipino, married to xxx, and residing at xxx, xxx Subd., xxx Village, xxx, xxx City, under oath, respectfully depose and state:

I.                  PREFATORY STATEMENT.

1.      THE TWO (2) SUBPOENAS RECEIVED BY HEREIN AFFIANT xxx FOR AND IN BEHALF OF HER HUSBAND xxx. -

1.1.           I received from this Honorable Office on February 14, 2016 two (2) Subpoenas, both dated 10 February 2016, marked as Annex “1” and Annex “2” hereof, addressed to my husband xxx

(“xxx”, for brevity) at our residence in xxx, xxx Homes, xxx Village, xxx, xxx City in connection with the two (2) above-captioned consolidated cases.

1.2.          The subpoena for Case No. xxx (“SPO2 xxx vs. xxx and xxx”) was not accompanied by the Police Report of SPO2 xxx.

1.3.          On February 19, 2016 the herein Affiant secured from this Honorable Office certified true copies of the said Police Record of SPO2 xxx and the relevant documents attached thereto, the same to form part of my Affidavit in defense  of my husband xxx and in my capacity as intervenor/co-complainant in Case No. xxx.

1.4.          It appears that in the said Case No. xxx (“SPO2 xxx vs. xxx and xxx” for reckless imprudence resulting in damage to property), my husband xxx was made by the SPO2 as the complainant against xxx (“xxx”, for brevity), per my inquiry with the records staff of this Honorable Office on February 19, 2016, because my husband xxx was not required by the Subpoena issued in the said case to submit his/our Counter-Affidavit.

1.5.          The Subpoena for Case No. xxx (“xxx vs. xxx”, for reckless imprudence resulting in damage to property), however, required my husband xxx, as the respondent therein, to submit his Counter-Affidavit in relation to the Complaint filed in the said case by xxx arising from the same vehicular incident subject matter of the related/consolidated Case No. Case No. xxx (“SPO2 xxx vs. xxx and xxx”).

2.    PURPOSES OF THIS AFFIDAVIT AND LEGAL STANDING OF HEREIN AFFIANT xxx.  –

2.1.          This Affidavit is being submitted by me to this Honorable Office in compliance with the abovementioned two (2) Subpoenas issued by it in relation to the abovecaptioned two (2) consolidated cases.

2.2.        The purposes of this Affidavit are to serve as:

(a)             My Affidavit as a corroborating witness in support of the claim for damages and the defenses of my husband xxx in the abovecaptioned two (2) consolidated cases.

(b)            My Affidavit as a Intervenor/Co-Complainant in Case No. xxx for the property damage sustained by my vehicle (xxx, Plate No. xxx), which vehicle was officially registered in my name as the lawful owner thereof.

(c)             My Affidavit as the Attorney-In-Fact or Legal Representative of my husband xxx for purposes of the litigation of the abovecaptioned two (2) consolidated cases while he is out of the country by reason of his work as an Overseas Filipino Worker (OFW).

3.   INABILITY OF xxx (OVERSEAS FILIPINO WORKER) TO APPEAR BEFORE THE OFFICE OF THE CITY PROSECUTOR OF xxx CITY AT THIS TIME FOR PURPOSES OF THE PRELIMINARY INVESTIGATION OF THE ABOVECAPTIONED TWO (2) CONSOLIDATED CASES.

SPECIAL POWER OF ATTORNEY EXECUTED BY xxx IN FAVOR OF THE HEREIN AFFIANT xxx AS HIS ATTORNEY-IN-FACT AND LEGAL REPRESENTATIVE IN CONNECTION WITH THE LITIGATION OF THE ABOVECAPTIONED TWO (2) CONSOLIDATED CASES.

3.1.          For the information of this Honorable Office my husband xxx left for abroad as an OFW (seaman) on January 29, 2016.

3.2.        I was appointed by my husband xxx as his Attorney-In-Fact or Legal Representative to act for and in his behalf in connection with the litigation of the abovecaptioned two (2) consolidated cases as shown by the SPECIAL POWER OF ATTORNEY (SPA) he  executed on January 21, 2016, a copy of which is attached as Annex “3” hereof.

3.3.        The said SPA expressly empowered me to perform any and all of the following duties and functions:

         “x x x.

           To file, prosecute and defend my said problem or case until its finality, including with any other forum, with power to make counterclaims, avail of discovery procedures, any and all provisional and extraordinary remedies, and to file the proper action in court; to appear in any hearings or proceedings or action in any forum, including with the courts, quasi-judicial bodies and government agencies, and out-of-court, especially for my said pending case; to attend any hearing, pre- trial hearing or conference or mediation , with power to make admissions and stipulations of facts and documents, to submit and/or approve compromise proposals; to attend subsequent hearings or conferences after the pre- trial or preliminary conference; to implement and execute any compromise proposals or agreements; to sue and be sued under any action or proceeding; to sign VERIFICATION AND CERTIFICATION OF NON- FORUM SHOPPING on any petition/complaint, amended or supplemental petition/complaint, motion, manifestation, compliance or any paper, writing or document; to waive any procedure in the Rules of Court or other rules, including to waive any PLEADING, PRE-TRIAL OR TRIAL PROCEDURE or any other PROCEDURE in any forum; to sign, seal and execute any affidavit of whatever kind and nature, or any document, contract, agreement, compromises, receipts, or any other paper or writing in relation thereto; and to sign, seal and execute all necessary documents, contracts, agreements, affidavits, compromises, receipts, petitions, complaints, answers, motions, verifications, certificates against non-forum shopping and other pleadings, including amendments and supplements thereto; to cause the signing, sealing, execution of any complaint, motion, affidavit of whatever kind and nature, or any document, contract, agreement, compromises, receipts, complaint-affidavit, counter-affidavit, reply-affidavit, rejoinder-affidavit, letter or any other paper or writing in relation thereto; to hire and pay lawyer of counsel, to make payments as are considered acts of strict dominion; to testify in any forum under the limits allowed by law; to secure witnesses, witnesses’ affidavits and all evidences; all pertaining to all the powers expressly and impliedly herein granted or those bye necessary implication thereto.

             X x x.”

II.               MOTION TO INTERVENE.

4.    I hereby move for leave of this Honorable Office to INTERVENE as a CO-COMPLAINANT of my husband xxx in Case No. xxx.

4.1.          My legal interest to intervene lies in the fact that I was the REGISTERED OWNER of xxx with PLATE NO. xxx which was being driven by my husband xxx at the time of the incident subject matter of the two (2) abovecaptioned consolidated cases (i.e., January 8, 2016 at about 7:30 AM at xxx St. [in front of xxx Bldg. and opposite the entry-exit gate of xxx Homes] inside xxx Village, xxx, xxx City).

4.2.        If this motion would be granted, I further move that this Affidavit be deemed as my Complaint-In-Intervention.

4.3.        By analogy, it will be noted that Sec. 1 and Sec. 2, Rule 19 (INTERVENTION), of the 1997 Rules of Civil Procedure provide:

“SECTION 1. Who may intervene.—A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding. (2[a], [b]a, R12).”

“SEC. 2.  Time to intervene.–The motion to intervene may be filed at any time before rendition of judgment by the trial court.  A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (n).”

III.           ADOPTION OF THE INVESTIGATION RECORDS OF THE INVESTIGATOR-ON-CASE SPO2 xxx AND SUBMISSION OF OTHER RELEVANT DOCUMENTS.

5.     For and in behalf of my husband xxx as his Attorney-In-Fact and Legal Representative, and in capacity as a corroborating witness for my husband xxx and as his Co-Complainant in Case No. xxx, I hereby adopt and submit to this Honorable Office the photocopies of the following investigation records of SPO2 xxx, which were all certified by the records section of this Honorable Office to be true copies of the originals thereof in its custody, to wit:

(a)             Annex “4”. – Certificate of Registration (CR) and current Official Receipt (OR) issued by the Land Registration Office (LTO) for the subject motor vehicle of herein Affiant, i.e., xxx with Plate No. xxx registered in my name.

(b)            Annex “5”. - Certificate of Registration (CR) and current Official Receipt (OR) issued by the Land Registration Office (LTO) for the subject motor vehicle of xxx, i.e., xxx with Plate No. xxx registered in the name of herein xxx.

Note:

It appears that the registration of the vehicle of xxx was already EXPIRED at the time of the subject vehicular incident on January 8, 2016 because the date of issuance of its annual LTO Official Receipt (OR) was April 19, 2013 (4/19/13).

If such is the case, it may be concluded that xxx was in violation of the Land Transportation and Traffic Code (RA 4146) at the time of the subject vehicular incident.

(c)             Annex “6”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of xx.

(d)            Annex “7”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of xxx, the eye-witness Security Guard of xxx Homes (xxx Village).

(e)             Annex “8”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of the herein Affiant.

(f)              Annex “9”. – MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of xxx.

(g)            Annex “10”. – SKETCH of the scene of the subject vehicular incident.

(h)            Annex “11”. – PICTURES of the two (2) subject vehicles taken at the scene of the incident, showing their respective positions (in black and while).

(i)               Annex “12”. – QUOTATION, dated January 8, 2016, issued by xxx INC. to xxx (driver) and the herein Affiant (registered owner), showing a cost estimate of P96, 480.82.

(j)               Annex “13”. – REPAIR ESTIMATE, dated 11 January 2016, issued by xxx to xxx showing a cost estimate of P88, 424.00.

(k)            Annex “14”. – TRAFFIC ACCIDENT INVESTIGATION REPORT, dated January 8, 2016, issued by Investigator-On-Case SPO2 xxx.

6.    FURTHER, I hereby submit to this Honorable Office the following additional relevant documents in support of my statements in this Affidavit and in support of the claim and defenses of my husband xxx:

(a)             Annex “15”, with sub-markings. – Additional PICTURES of the two (2) subject vehicles taken at the time of the incident.

Note:

I am submitting to the Investigating Prosecutor the ORIGINALS of the said pictures (attached to the original copy of this Affidavit intended for the Investigating Prosecutor) for him to better appreciate the nature, locations, and details of the respective property damage/s sustained by the two (2) vehicles during the incident. The extra copies of this Affidavit will contain only clear colored photocopies of the said pictures to economize on the photo developing costs.

(b)            Annex “16”.  -  COMPACT DISC (CD) of the subject incident which was taken by the CCTV camera of xxx Bldg. located at xxx St.,  xxx, xxx Village. The incident happened in front of xxx Bldg.

Note:

I personally secured the said CD from the caretaker (named “xxx”) of the xxx Bldg. a few days after the date of the subject incident as part of my continuing investigation and search for further evidence of the incident in support of the claim and defenses of my husband xxx.

I hereby reserve the right to secure the Affidavit of the said xxx Bldg. caretaker (“xxx”) or at the least a notarized Certification as part of the authentication of the contents of the said CD before the termination of the preliminary investigation of these two (2) consolidated cases.

For lack of material time, I cannot at this time secure the said Affidavit or notarized Certification.

Further, because the CD version of the CCTV video is not very clear because of the opposing morning sunlight at the time it was taken, and for the convenience of the Investigating Prosecutor, I am attaching a clearer version thereof in a USB gadget attached to the copy of this Affidavit intended for the Investigating Prosecutor, so that he could better analyze the incident. The extra copies of this Affidavit however will contain the aforementioned CDs.

(c)             Annex “17”, - DEED OF SALE OF MOTOR VEHICLE, dated January 25, 2016, executed by me (vendor) as the registered owner of the  subject xxx with Plate No. xxx in favor the vendee xxx for the amount of P360, 000.00.

Note:

The cause abovementioned transaction was negotiated and finalized between the parties thereto before the occurrence of the subject incident. The actual execution of the deed of sale was delayed because of the subject vehicular incident and because of the property damage that it had caused on my vehicle. The deed of sale was executed only on January 25, 2016 (17 days after the subject January 8, 2016 vehicular incident). 

(d)            Annex “18”. -  DEMAND AND INVITATION LETTER, dated January 8, 2016 (the date of the subject incident), by our counsel Atty. Manuel Laserna Jr., addressed to xxx, which is self-explanatory. Xxx ignored the said letter.

(e)             Annex “19”. – DEMAND LETTER, dated January 25, 2016, of Atty. xxx, counsel for xxx, addressed to my husband xxx.

(f)              Annex “20”. – REPLY-LETTER, dated January 28, 2016, our counsel Atty. Laserna addressed to Atty. xxx in response to the aforementioned Demand Letter, dated January 25, 2016, of Atty. xxx (Annex “19”).

(g)            Annex “21”. – PICTURE of the “speed limit signage” of xxx Village Homeowners Association, Inc. (speed limit of 30 KPH).

(h)            Annex “22”. -  LETTER OF EMPLOYMENT of my husband xxx showing period of his overseas employment contract, i.e., January 29, 2016 up to August 19, 2016. For this reason, he would be unable to appear during the preliminary investigation of these consolidated cases. Hence, he executed an SPA for me, as stated in Annex “3“, supra.

IV.            FACTS OF THE CASE.

7.     Briefly, the incident may be summarized, thus:

On January 8, 2016 at about 7:30 AM on xxx St., xxx Village, in front of the entry-exit gate of xxx Homes and in front of xxx Bldg. on xxx St., the Security Guard xxx of xxx Homes, stopped a MONTERO (Plate Number not indicated in the case record or in the Salaysay of the said security guard) that was traversing westward along xxx St. towards xxx St., in order to allow my husband xxx, who was driving our family car (xxx, Plate No. xxx) to slowly exit the main entry-exit gate of xxx Homes.

When my husband was already past the middle of xxx St., all of sudden xxx, who was overspeeding, appeared like a lightning and hit the right front fender, bmper, hood, and other frontal parts of our of our family car.

Xxx was driving along xxx St. from xxx Lane (east) going to xxx Ave. (west).

Xxx disregarded the MONTERO which dutifully stopped, in obedience to the security guard of xxx Homes, to give way to my husband xxx.

My husband xxx was slowly exiting the gate of xxx Homes, as stated in his Salaysay.  

Our car sustained damage in the right front fender, the front bumper, the hood, and other parts thereof, as stated in the QUOTATION issued by xxx INC. (Annex “12”, supra).

The car of xxx sustained damage at the left front fender.

Due to the impact, the air from his left front tire exited and he suffered from a flat /deflated tire in his left front wheel.

Instead of apologizing, XXX blamed by husband.

At the Traffic Bureau, when we were following up the police report, we met XXX, who again did not apologize but instead insinuated to us that the parties should litigate their claim and counterclaim.

We were hoping that XXX would make a compromise offer to us to amicably settle the damage that he had caused on our case but he did not.

Our lawyer Atty. Laserna also wrote a letter to XXX inviting him to his law office to explore a possible compromise but he ignored it (Annex “18”, supra).

  

V.               DISCUSSION.

A.   RECKLESS IMPRUDENCE OF  XXX.

8.    In the MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of my husband XXX (Annex “6”, supra), which Salaysay was sworn to by him before Senior Assistant City Prosecutor xxx, which was submitted by my husband to SPO2 Xxx to form part of the latter’s investigation report to be filed by said police officer with this Honorable Office for preliminary investigation Office, and which investigation report is now part of the case records of these to (2) consolidated cases pending before this Honorable Office, my husband XXX stated, thus:

“Papalabas ako sa Xxx Home Subd.  Nagtratrapik ang village security in between Xxx Xxx at Xxx Home (Intersection). Pinastop ng village security ang isang Montero para padaanin ako, habang paliko na ako at pinagbigyan na ako ng Montero biglang sumulpot ang isang xxx. Mabilis ang takbo ng xxx na sumulpot sa likod ng Montero”.

9.    In the MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016, of XXX XXX XXX (Annex “7”, supra) the eye-witness Security Guard of Xxx Homes assigned to the entry-exit gate of the said village on the date and time of the subject incident, which Salaysay was sworn to by him before Senior Assistant City Prosecutor, and submitted by him to the SPO2 XXX to form part of his investigation report to be filed by him with this Honorable Office for preliminary investigation, and which Salaysay is now part of the case record of this Honorable Office,  the  said affiant-witness Xxx Xxx XXX stated, thus:

“Isang banngaan naganap sa tapat ng XXX Building dakung axxxseyete nag umaga or 7:00 am sa may Xxx Xxx corner Xxx Homes. Ang Xxx Xxx ay palabas nga galing sa loob nag xxx homes at eto ay tatawid sa kabilang kalsada, inasis ko ang Xxx Xxx upamg madali siyang makatawid at nung nakalabas na yung harapan (ng) Xxx isang sasakyan ang bumangga sa Xxx Xxx. Ito ay Xxx. Mabilis ang takbo nang Xxx kaya nabangga niya ang papatawid na Xxx Xxx. Dahil sa bilis nag takbo nag Xxx nawasak ang harapan nag Xxx Xxx sa sobrang lakas nag impak na tumama sa harapan nag Xxx Xxx kaya wasak na wasak ang harap. Traffic ang isang linya papunta ng Casimiro kaya pinahinto ko ang Montero sa  kabilang linya na sinusundan nya (XXX) para makadaan ang Xxx Xxx, Nang nasa kabilang linya na ang Xxx Xxx nabangga na ng Xxx ang Xxx Xxx.”

10.            In my own MALAYANG SINUMPAANG SALAYSAY, dated January 8, 2016 (Annex “8”, supra), as the registered owner of the subject Xxx Xxx, with Plate No. xxx, which Salaysay was sworn to by me before Senior Assistant City Prosecutor xxx, and which was submitted by me to SPO2 XXX to form part of his investigation report to be filed by him this Honorable Office for preliminary investigation, and which Salaysay is now part of the case record of this Honorable Office, I stated, thus:

“Nasa bahay ako tumawag ang aking asawa (Xxx Xxx). Sinabi na sya ay binangga ng isang Xxx Xxx na minamaneho ni Mr. (Xxx) Xxx. Pagdating ko sa Xxx Xxx (St.) kung saan nagyari ang aksidente, tinanong ko ang aking asawa sa nangyari at napaliwanag nya sa  akin ang buong detalye. Nagpunta kame sa Traffic (Bureau) office sa Casimero (Ave.) para mag ayos, subalit walang nangyari. Kaya nagsampa kame ng reklamo laban Mr. Xxx”.

11.  In a Letter, dated January 8, 2016, of our lawyer Atty. Laserna (Annex “18”, supra) addressed to Xxx Xxx, Atty. Laserna stated, thus:

“x x x.

We represent Mr. Xxx Xxx and his wife Mrs. Xxx Xxx.

This refers to their family vehicle registered in the name of his Mrs. Xxx Xxx, described as Xxx Xxx, Plate No. xxx, Metallic Beige.

We are writing in re: the incident which happened today, January 8, 2016, at about 7:00 AM – 7:30 AM at Xxx Xxx St., in front of XXX Bldg. and in front of the gate of Xxx Homes, inside XXXXxx Village, XxxXxx City, which resulted in damage to the vehicle of our said clients.

Based on the evidence of the incident, the proximate cause thereof is your reckless and negligent manner of driving your vehicle (Xxx Xxx, Plate No. xxx  when you suddenly took over a Montero vehicle in front of you, which Montero vehicle was then on stand still having been earlier stopped by the Xxx Homes guard on duty at that time, to give way to the slow exit of the vehicle of our said clients from Xxx Homes. Your reckless driving resulted in a collision of the two vehicles involved.

We request a legal conference with you and your lawyer to be held on January 13, 2016, Wednesday, at 3:00 PM at our law office to discuss and explore a possible compromise agreement between the parties to avoid unnecessary and expensive criminal and/or civil litigations.

Please let us know of your response hereto within two (2) days from your receipt hereof. Beyond the said time, if this request is ignored, we shall take the proper legal actions against you. Thank you.

X x x.”

11.1.       The aforecited Letter was ignored by Xxx.

12. In a Letter, January 28, 2016, of our lawyer Atty. Laserna (Annex “20”, supra), addressed to Atty. Xxx, counsel for Xxx, Atty. Laserna stated thus:

“x x x.                                       

RE :         YOUR DEMAND LETTER, DATED JANUARY 22, 2016, ADDRESSED TO XXX XXX.

MABUHAY:

We represent XXX XXX, a resident of xxx, XXXX Village, xxx, Xxx City.

This refers to your Demand Letter, January 25, 2016, which the spouse of our client, Xxx Xxx, thru her mother, Xxx, received on January 28, 2016, demanding the sum of P88,424.00 in re: the vehicular incident that happened on January 8, 2016 at about 7:00 AM on Xxx Xxx St., XXXXxx Village, XxxXxx City.

We respectfully DENY the claim of your client, the same being unfounded, baseless and contrary to the truth and the evidence, the truth being that the reckless imprudence, lack of due diligence, and criminal irresponsibility of your client was the proximate cause of the said vehicular incident which likewise caused damage to the vehicle of our client in the amount of P96,480.82 (See attached Xxx estimate/quotation, dated January 8, 2016).

The said amount of damage shall be proven in due time by our clients before the Office of the City Prosecutor and the proper Trial Court.

Per latest inquiry by Mrs. Xxx Xxx, the PNP XxxXxx City Traffic Bureau has forwarded to the Office of the City Prosecutor the records of the said vehicular incident for regular preliminary investigation. The case is reportedly docketed as xxx  before the said Office and will still be raffled to an investigating prosecutor as of today.

Our clients are prepared to LITIGATE their claim before the said Office and the proper Trial Court of XxxXxx City in due time, without prejudice to the right of the contending parties to discuss and explore a possible Compromise during the Mediation and the Judicial Dispute Resolution phases of the said case.

For your information, Xxx Xxx will fly tomorrow for abroad as an overseas Filipino worker (a seaman in a foreign cruise liner). His wife, Xxx Xxx (who is the registered owner of the Xxx vehicle involved in the aforecited vehicular incident), will represent him as his attorney-in-fact for purposes of the litigation of the aforecited case before the Office of the City Prosecutor and the proper Trial Court.

Please note that we had previously send a Letter, dated  January 8, 2016, to your client XXX B. XXX, with address of record as per his Driver’s License at  xxx  Bldg., xxx Village, xxx Subd., xxx City, inviting him to a conference at our law office on January 13, 2016 at 3:00 PM to discuss/explore a Compromise. Your client did not appear during the said conference.

Thank you.

X x x.”

B.    RELEVANT LAWS AND JURISPRUDENCE.

13. Article 365 of the Rev. Penal Code reads as follows:

"Art. 365.    Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum periodical shall be imposed.   

"Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

"When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos.

"A fine not exceeding two-hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony.

"In the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the rules prescribed in article sixty-four. 

"The provisions contained in this article shall not be applicable: 

"1.    When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the courts shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply.  

"2.    When, by imprudence or negligence and with violations of the Automobile Law, the death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods.

"Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

"Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.

"The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in his hands to give." 

14. The aforecited provision defines RECKLESS IMPRUDENCE and SIMPLE NEGLIGENCE as follows:

"Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

"Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.

15.  XXX was overspeeding at the time of the incident.

The speed limit inside XXXXxx Village is only 30 KPH.

In our own village (xxx) located inside XXXXxx Village the speed limit, in fact, is even much lower, i.e., 15 KPH.

The speed limit signages of the XXXXxx Village Homeowners Association, Inc. [BFRVHAI] are located/distributed all around the main streets inside the village. (See Annex “21”, supra).

The CCTV video (Annex “16”, supra) of the incident shows that XXX was overspeeding, perhaps at about 40-50 KPH.

Considering that January 8, 2016, a Friday, was a working day, it is fair to assume that at that time (7:00 AM) XXX was in hurry to go to work, hence, the reckless overspeeding and overtaking.

On the other hand, my husband XXX, per the same CCTV video, was moving very slowly at about 15 KPH as he was carefully turning left, after exiting from the gate of Xxx Homes, along Xxx Xxx St. towards xxx St. (westward).

XXX knew and could not have missed the fact that the MONTERO car had already stopped or was stationary, in obedience to the signal of the Xxx Homes Security Guard XXX. XXX should have likewise stopped to give way to the exiting vehicles from the gate of Xxx Homes.

At the very least, XXX should have slowed down to 10 KPH to 15 KPH to insure that there were no outgoing vehicles on his left (i.e., left or front of the stopped MONTERO) which was a blind side from XXX’s vantage. 

XXX did not stop.

Instead, he overtook the stopped or stationary MONTERO in front of him.

XXX, in an overspeeding manner, tried to speed away on the right side of the MONTERO, hitting our family car being driven by my husband XXX at that time.

The PROXIMATE CAUSE of the property damage on our family car was the RECKLESS IMPRUDENCE of XXX.

16. The analogous case of  ROGELIO J. GONZAGA vs. PEOPLE OF THE XXXPINES, G.R. No. 195671, January 21, 2015, is instructive.

“x x x.

Reckless imprudence, as defined in Article 365⁴⁰ of the RPC, consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

X x x.

In the present case, the RTC and the CA uniformly found that Rogelio’s act of driving very fast on the wrong side of the road was the proximate cause of the collision, resulting to the death of Dionesio, Sr. and serious physical injuries to Dionesio, Jr. and Cherry. Notably, the road where the incident occurred was a curve sloping upwards towards Brgy. Bocboc where the Inguitos were bound and descending towards the opposite direction where Rogelio was going. Indeed, the very fact of speeding, under such circumstances, is indicative of imprudent behavior. As a motorist, Rogelio was bound to exercise ordinary care in such affair by driving at a reasonable rate of speed commensurate with the conditions encountered, as this would enable him to keep the vehicle under control and avoid injury to others using the highway.⁴³ Moreover, it is elementary in traffic school that a driver slows down before negotiating a curve as it may be reasonably anticipated that another vehicle may appear from the opposite direction at any moment. Hence, excessive speed, combined with other circumstances such as the occurrence of the accident on or near a curve, as in this case, constitutes negligence.⁴⁴ Consequently, the Court finds that Rogelio acted recklessly and imprudently in driving at a fast speed on the wrong side of the road while approaching the curve where the incident happened, thereby rendering him criminally liable, as well as civilly accountable for the material damages resulting therefrom. X x x.

X x x.”

17.  Sec. 41 of R.A. No. 4136, or the LAND TRANSPORTATION AND TRAFFIC CODE, provides for the rules on overtaking and passing which apply to this case by analogy.

When a driver’s vantage or line of sight is obstructed, e.g., by a curve or a stopped/stationary vehicle in front of him, he should not overtake the stopped/stationary vehicle in front of him, more so in an overspeeding manner.

In this case, XXX overtook the stopped/stationary MONTERO in front of him, in an overspeeding manner and without regard as to whether or not there were vehicles on the left or front of the said MONTERO exiting from Xxx Homes along Xxx Xxx St. that he might hit.

Please note Sec. 41 of RA No. 4136, to wit:

“Section 41. Restrictions on overtaking and passing.

(a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking or passing another vehicle proceeding in the same direction, unless such left side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in safety.

(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same direction, when approaching the crest of a grade, not upon a curve in the highway, where the driver's view along the highway is obstructed within a distance of five hundred feet ahead, except on a highway having two or more lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle: Provided, That on a highway within a business or residential district, having two or more lanes for movement of traffic in one direction, the driver of a vehicle may overtake or pass another vehicle on the right.”

18.Please note also Sec. 35 of RA No. 4136 (restrictions as to speed).

“Section 35. Restriction as to speed. -

(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and of any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.

(b) Subject to the provisions of the preceding paragraph, the rate of speed of any motor vehicle shall not exceed the following:

MAXIMUM ALLOWABLE SPEEDS	Passengers Cars and Motorcycle	Motor trucks and buses
1. On open country roads, with no "blinds corners" not closely bordered by habitations.	80 km. per hour	50 km. per hour
2. On "through streets" or boulevards, clear of traffic, with no " blind corners," when so designated.	40 km. per hour	30 km. per hour
3. On city and municipal streets, with light traffic, when not designated "through streets".	30 km. per hour	30 km. per hour
4. Through crowded streets, approaching intersections at "blind corners," passing school zones, passing other vehicles which are stationery, or for similar dangerous circumstances.	20 km. per hour	20 km. per hour

19. The analogous case of MARIANO C. MENDOZA and ELVIRA LIM vs. SPOUSES LEONORA J. GOMEZ and GABRIEL V. GOMEZ, G.R. No. 160110, June 18, 2014, is applicable to this case.

In the said case, the Supreme Court held that “before the collision, the Xxx truck was in its rightful lane, and was even at a stop, having been flagged down by a security guard of St. Ignatius Village.” 

The mishap occurred “when the Mayamy bus, travelling at a fast speed as shown by the impact of the collision, and going in the opposite direction as that of the Xxx truck, encroached on the lane rightfully occupied by said Xxx truck, and caused the latter to spin, injuring Perez, Anla, Banca, and Repisada, and considerably damaging the Xxx truck.”

The relevant doctrinal parts of the aforecited case are cited hereinbelow:

“x x x.

The first question to address, then, is whether or not Mendoza’s negligence was duly proven. Negligence is defined as the failure to observe for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.²¹

As found by the RTC, and affirmed by the CA, Mendoza was negligent in driving the subject Mayamy bus, as demonstrated by the fact that, at the time of the collision, the bus intruded on the lane intended for the Xxx truck. Having encroached on the opposite lane, Mendoza was clearly in violation of traffic laws. Article2185 of the Civil Code provides that unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. In the case at bar, Mendoza’s violation of traffic laws was the proximate cause of the harm.

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.²²

The evidence on record shows that before the collision, the Xxx truck was in its rightful lane, and was even at a stop, having been flagged down by a security guard of St. Ignatius Village.²³ The mishap occurred when the Mayamy bus, travelling at a fast speed as shown by the impact of the collision, and going in the opposite direction as that of the Xxx truck, encroached on the lane rightfully occupied by said Xxx truck, and caused the latter to spin, injuring Perez, Anla, Banca, and Repisada, and considerably damaging the Xxx truck.

X x x.”

20.          In the case of  LARRY V. CAMINOS, JR. vs. PEOPLE OF THE XXXPINES, G.R. No. 147437, May 8, 2009, the Supreme Court discussed the standard of care or diligence that a driver must observe, that is, “the measure of a motorist’s duty is such care as is, under the facts and circumstances of the particular case, commensurate with the dangers which are to be anticipated”.

“x x x.

All told, it must be needlessly emphasized that the measure of a motorist’s duty is such care as is, under the facts and circumstances of the particular case, commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle, and in proportion to or commensurate with the peculiar risk attendant on the circumstances and conditions in the particular case,⁸¹ the driver being under the duty to know and to take into consideration those circumstances and factors affecting the safe operation of the vehicle which would be open to ordinary observation.⁸²

X x x.”

21.            In the analogous case of MARIKINA AUTO LINE TRANSPORT CORPORATION and FREDDIE L. SUELTO vs. PEOPLE OF THE XXXPINES and ERLINDA V. VALDELLON, G.R. No. 152040, March 31, 2006, where the issues were the illegal overtaking and overspeeding of the guilty driver, the Supreme Court cited Art. 2185 of the Civil Code which provides that "unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent, if at the time of mishap, he was violating any traffic regulation." In the aforecited case, “by his own admission, petitioner Suelto violated the Land

Transportation and Traffic Code when he suddenly swerved the bus to the right, thereby causing damage to the property of private respondent.”

The above provision applies to XXX who was guilty of overspeeding, reckless overtaking on the right side of a stopped/stationary vehicle (Montero), and using an apparently expired LTO OR (see Annex “5”, supra).

In the aforecited case the Supreme Court held, thus:

“x x x.

On the first issue, we find and so resolve that respondent People of the Xxxpines was able to prove beyond reasonable doubt that petitioner Suelto swerved the bus to the right with recklessness, thereby causing damage to the terrace of private respondent’s apartment. Xxx.

Suelto narrated that he suddenly swerved the bus to the right of the road causing it to hit the column of the terrace of private respondent. X x x.

X x x.

Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land Transportation and Traffic Code, motorists are mandated to drive and operate vehicles on the right side of the road or highway:

SEC. 37. Driving on right side of highway. – Unless a different course of action is required in the interest of the safety and the security of life, person or property, or because of unreasonable difficulty of operation in compliance herewith, every person operating a motor vehicle or an animal-drawn vehicle on a highway shall pass to the right when meeting persons or vehicles coming toward him, and to the left when overtaking persons or vehicles going the same direction, and when turning to the left in going from one highway to another, every vehicle shall be conducted to the right of the center of the intersection of the highway.

Section 35 of the law provides, thus:

Sec. 35. Restriction as to speed.—(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and of any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead (emphasis supplied).

In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent, if at the time of mishap, he was violating any traffic regulation." By his own admission, petitioner Suelto violated the Land Transportation and Traffic Code when he suddenly swerved the bus to the right, thereby causing damage to the property of private respondent.

X x x.

As already maintained and concluded, the severe damages sustained could not have resulted had the accused acted as a reasonable and prudent man would. The accused was not diligent as he claims to be. What is more probable is that the accused had to swerve to the right and hit the commercial apartment of the plaintiff because he could not make a full stop as he was driving too fast in a usually crowded street.²⁴

X x x.”

22.           At this juncture, it is instructive to cite the relevant provisions of the Civil Code on human relations and quasi-delict.

Human Relations.

Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Article 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Quasi-delicts

Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a)

Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.(n)

Article 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n)

Article 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months.

If the owner was not in the motor vehicle, the provisions of article 2180 are applicable. (n)

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. (n)

VI.            RELIEF.

WHEREFORE, in the interest of justice, it is respectfully prayed that XXX B. XXX be INDICTED for the felony of RECKLESS IMPRUDENCE RESULTING IN DAMAGE TO PROPERTY.

FURTHER, the undersigned respectfully prays that her aforementioned MOTION FOR INTERVENTION, as a CO-COMPLAINANT of her husband XXX in re: Case No. xxx, supra, be GRANTED and that this Affidavit of the undersigned Affiant by deemed as her Complaint-In-Intervention.

FURTHERMORE, it is respectfully prayed that the aforementioned SPECIAL POWER OF ATTORNEY executed by XXX XXX y AMBAGAN in favor of the undersigned Affiant as his Attorney-In-Fact and Legal Representative for purposes of the litigation of the abovecaptioned two (2) consolidated cases be duly NOTED.

FINALLY, the undersigned respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

Xxx City, February 20, 2016.

XXX XXX XXX

Affiant;

Co-Complaining Witness vs.

Xxx;

Attorney-in-Fact and Wife

of Lead Complaining Witness

Xxx; and

Collaborating Witness for

Her Husband Xxx  

          SUBSCRIBED and sworn to before me in Xxx City on February 24, 2016.

                                      Xxx

                                      Investigating Assistant City Prosecutor

Copy Furnished:

XXX

Respondent in NPS Docket No.

Xxx;

Complainant in NPS Docket No.

Xxx

(Represented by Atty Xxx Xxx)

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