Judicial legislation - "Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation."

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20180016_estafa.html


G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.


“x x x.

There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on crimes against property committed today, based on the amount of damage measured by the value of money eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of the government. This, however, does not render the whole situation without any remedy. It can be appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation. The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief Executive the reasons why the court considers the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no punishable act except those previously and specifically provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or at the ratio of P1.00 is equal to P100.00 . However, it would be dangerous as this would result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the present legislature has not made any moves to amend the subject penalties in order to conform with the present times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. Xxx.

X x x.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation.


Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for awards of civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.

X x x.

The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to the present value of money based only on the current inflation rate. There are other factors and variables that need to be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress. Xxx.

X x x.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

X x x."

Credibility of the prosecution's sole witness

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20180016_estafa.html



G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.


"x x x.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The assessment by the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of evidence, the witnesses are to be weighed not numbered.17

x x x."

Demand in estafa cases - "Demand need not even be formal; it may be verbal."

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20180016_estafa.html


G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.


"x x x.

Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the private complainant, to the prejudice of the latter.

x x x."

Estafa - "The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender"

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20180016_estafa.html


G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

"x x x.

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned and that the date when the crime occurred was different from the one testified to by private complainant. This argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating that objections as to the matters of form and substance in the Information cannot be made for the first time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does not render the Information ipso facto defective. Moreover, the said date is also near the due date within which accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

x x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property; x x x


The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8

x x x."

Machine copies of documentary evidence - "The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived."

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20180016_estafa.html


G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.


"x x x.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived.5

x x x."

Recovery of Tax Erroneously or Illegally Collected.

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20179260.html


G.R. No. 179260 April 2, 2014

COMMISSIONER OF INTERNAL REVENUE, Petitioner,
vs.
TEAM [PHILIPPINES] OPERATIONS CORPORATION [formerly MIRANT (PHILS) OPERATIONS CORPORATION], Respondent.


"x x x.

The Issue and Our Ruling

The core issue for the Court’s resolution is whether or not respondent has established its entitlement for the refund or issuance of a tax credit certificate in its favor the entire amount of P69,562,412.00 representing its unutilized tax credits for taxable year ended 31 December 2001, pursuant to the applicable provisions of the NIRC of 1997, as amended.

This is not novel.

In order to be entitled to a refund claim or issuance of a tax credit certificate representing any excess or unutilized creditable withholding tax, it must be shown that the claimant has complied with the essential basic conditions set forth under pertinent provisions of law and existing jurisprudential declarations.

In Banco Filipino Savings and Mortgage Bank v. Court of Appeals,13 this Court had previously articulated that there are three essential conditions for the grant of a claim for refund of creditable withholding income tax, to wit: (1) the claim is filed with the Commissioner of Internal Revenue within the two-year period from the date of payment of the tax;14 (2) it is shown on the return of the recipient that the income payment received was declared as part of the gross income;15 and (3) the fact of withholding is established by a copy of a statement duly issued by the payor to the payee showing the amount paid and the amount of the tax withheld therefrom.

The first condition is pursuant to Sections 204(C) and 229 of the NIRC of 1997, as amended, viz:

SEC. 204. Authority of the Commissioner to Compromise, Abate and Refund or Credit Taxes. — The Commissioner may –

x x x x

(C) Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of internal revenue stamps when they are returned in good condition by the purchaser, and, in his discretion, redeem or change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction.

No credit or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for credit or refund within two (2) years after the payment of the tax or penalty: Provided, however, That a return filed showing an overpayment shall be considered as a written claim for credit or refund. (Emphasis supplied)

x x x x

SEC. 229. Recovery of Tax Erroneously or Illegally Collected. — No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment: Provided, however, That the Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied)

The second and third conditions are anchored on Section 2.58.3(B) of Revenue Regulations No. 2-98,16 which states:

Sec. 2.58.3.Claim for Tax Credit or Refund
x x x x

(B) Claims for tax credit or refund of any creditable income tax which was deducted and withheld on income payments shall be given due course only when it is shown that the income payment has been declared as part of the gross income and the fact of withholding is established by a copy of the withholding tax statement duly issued by the payor to the payee showing the amount paid and the amount of tax withheld therefrom. (Emphasis supplied)

In addition to the abovementioned requisites, the NIRC of 1997, as amended, likewise provides for the strict observance of the concept of the irrevocability rule,17 the focal provision of which is Section 76 thereof, quoted hereunder for easy reference:

SEC. 76. Final Adjustment Return. — Every corporation liable to tax under Section 27 shall file a final adjustment return covering the total taxable income for the preceding calendar or fiscal year. If the sum of the quarterly tax payments made during the said taxable year is not equal to the total tax due on the entire taxable income of that year, the corporation shall either:

(A) Pay the balance of tax still due; or

(B) Carry-over the excess credit; or

(C) Be credited or refunded with the excess amount paid, as the case may be.

In case the corporation is entitled to a tax credit or refund of the excess estimated quarterly income taxes paid, the excess amount shown on its final adjustment return may be carried over and credited against the estimated quarterly income tax liabilities for the taxable quarters of the succeeding taxable years. Once the option to carry-over and apply the excess quarterly income tax against income tax due for the taxable quarters of the succeeding taxable years has been made, such option shall be considered irrevocable for that taxable period and no application for cash refund or issuance of a tax credit certificate shall be allowed therefor. (Emphasis supplied)

Applying the foregoing discussion to the present case, we find that respondent had indeed complied with the abovementioned requirements.

Here, it is undisputed that the claim for refund was filed within the two-year prescriptive period prescribed under Section 22918 of the NIRC of 1997, as amended. Respondent filed19 its income tax return for taxable year 2001 on 15 April 2002. Counting from said date, it indeed had until 14 April 200420 within which to file its claim for refund or issuance of tax credit certificate in its favor both administratively and judicially. Thus, petitioner’s administrative claim and petition for review filed on 19 March 2003 and 27 March 2003, respectively, fell within the abovementioned prescriptive period.

Likewise, respondent was able to present various certificates of creditable tax withheld at source from its payors, MPC and MSC, for taxable year 2001, showing creditable withholding taxes in the aggregate amount of P70,805,771.42 (although the refund claim was only P69,562,412.00).21 Moreover, as determined by the CTA in Division, respondent declared the income related to the claimed creditable withholding taxes of P69,562,412.00 on its return.22

Lastly, in compliance with Section 76 of the NIRC of 1997, as amended, respondent opted to be refunded of its unutilized tax credit (as evidenced by the "x" mark in the appropriate box of its 2001 income tax return), and the same was not carried over in its 2002 income tax return; therefore, the entire amount of P69,562,412.00 may be a proper subject of a claim for refund/tax credit certificate.23

It is apt to restate here the hornbook doctrine that the findings and conclusions of the CTA are accorded the highest respect and will not be lightly set aside. The CTA, by the very nature of its functions, is dedicated exclusively to the resolution of tax problems and has accordingly developed an expertise on the subject unless there has been an abusive or improvident exercise of authority.24

Consequently, its conclusions will not be overturned unless there has been an abuse or improvident exercise of authority. Its findings can only be disturbed on appeal if they are not supported by substantial evidence or there is a showing of gross error or abuse on the part of the Tax Court. In the absence of any clear and convincing proof to the contrary, this Court must presume that the CTA rendered a decision which is valid in every respect.25

The Court in this case agrees with the conclusion of the CTA in Division and subsequent affirmation of the CTA En Banc that respondent complied with all the requirements for the refund of its unutilized creditable withholding taxes for taxable period ending 31 December 2001. We adopt the factual and legal findings as follows:

On the first ground, [petitioner] argues that [respondent] failed to present the various withholding agents/payors to testify on the validity of the contents of the Certificates of Creditable Tax Withheld at Source ("certificates"). Thus, the certificates presented by [respondent] are not valid. And even assuming that the certificates are valid, this Court cannot entertain the claim for refund/tax credit certificates because the certificates were not submitted to [petitioner].

[Petitioner’s] arguments are untenable since the certificates presented (Exhibits "R", "S", "T", "U", "V", "W", and "X") were duly signed and prepared under penalties of perjury, the figures appearing therein are presumed to be true and correct. Thus, the testimony of the various agents/payors need not be presented to validate the authenticity of the certificates.

In addition, that [respondent] did not submit the certificates to the [petitioner] is of no moment. The administrative and judicial claim for refund and/or tax credit certificates must be filed within the two-year prescriptive period starting from the date of payment of the tax (Section 229, NIRC). In the instant case, [respondent] filed its judicial claim (after filing its administrative claim) precisely to preserve its right to claim. Otherwise, [respondent's] right to the claim would have been barred. Considering that this [c]ourt had jurisdiction over the claim, frespondent] rightfully presented the certificates before this [c]ourt. Besides, any records that [petitioner] may have on the administrative claim would eventually be transmitted to this [c]ourt under Section S(b), Rule 6 of the Revised Rules of the Court of (Tax) Appeals.

As for the second ground, this [ c ]ourt finds [petitioner's] contention unmeritorious. The requirements for claiming a tax refund/tax credit certificates had been laid down in Citibank N.A. vs. Court of Appeals, G.R. No. 107434, October 10, 1997. Nowhere in the case cited is proof of actual remittance of the withheld taxes to the [petitioner] required before the taxpayer may claim for a tax refund/tax credit certificates.26 (Emphasis supplied)

In the same vein, this Court finds no abusive or improvident exercise of authority on the part of the CTA in Division. Since there is no showing of gross error or abuse on the part of the CTA in Division, and its findings are supported by substantial evidence which were thoroughly considered during the trial, there is no cogent reason to disturb its findings and conclusions.

All told, respondent complied with all the legal requirements and it is entitled, as it opted, to a refund of its excess creditable withholding tax for the taxable year 2001 in the amount of P69,562,412.00.

x x x."

Section 32. PD 1529, Property Registration Code. - Review of decree of registration; Innocent purchaser for value. - RTC jurisdiction and venue.

See - file:///C:/Users/Asus/Documents/SAVE%20HERE/5_TO%20BLOG/1.2_HTML_APRIL%202015/G.R.%20No.%20179155.html#rnt25

G.R. No. 179155 April 2, 2014

NICOMEDES J. LOZADA, Petitioner,
vs.
EULALIA BRACEWELL, EDDIE BRACEWELL, ESTELLITA BRACEWELL, JAMES BRACEWELL, JOHN BRACEWELL, EDWIN BRACEWELL, ERIC BRACEWELL, and HEIRS OF GEORGE BRACEWELL, Respondents.


"x x x.

Section 32 of PD 1529 provides that the review of a decree of registration falls within the jurisdiction of and, hence, should be filed in the "proper Court of First Instance," viz.:

Section 32. Review of decree of registration; Innocent purchaser for value. The decree of registration shall not be reopened or revised by reason of absence, minority, or other disability of any person adversely affected thereby, nor by any proceeding in any court for reversing judgments, subject, however, to the right of any person, including the government and the branches thereof, deprived of land or of any estate or interest therein by such adjudication or confirmation of title obtained by actual fraud, to file in the proper Court of First Instance a petition for reopening and review of the decree of registration not later than one year from and after the date of the entry of such decree of registration, but in no case shall such petition be entertained by the court where an innocent purchaser for value has acquired the land or an interest therein, whose rights may be prejudiced. Whenever the phrase "innocent purchaser for value" or an equivalent phrase occurs in this Decree, it shall be deemed to include an innocent lessee, mortgagee, or other encumbrancer for value.

Upon the expiration of said period of one year, the decree of registration and the certificate of title issued shall become incontrovertible. Any person aggrieved by such decree of registration in any case may pursue his remedy by action for damages against the applicant or any other persons responsible for the fraud. (Emphasis and underscoring supplied)

Since the LRA’s issuance of a decree of registration only proceeds from the land registration court’s directive, a petition taken under Section 32 of PD 1529 is effectively a review of the land registration court’s ruling. As such, case law instructs that for "as long as a final decree has not been entered by the [LRA] and the period of one (1) year has not elapsed from the date of entry of such decree, the title is not finally adjudicated and the decision in the registration proceeding continues to be under the control and sound discretion of the court rendering it."49

While it is indeed undisputed that it was the RTC of Makati City, Branch 134 which rendered the decision directing the LRA to issue Decree No. N-217036, and should, applying the general rule as above-stated, be the same court before which a petition for the review of Decree No. N-217036 is filed, the Court must consider the circumstantial milieu in this case that, in the interest of orderly procedure, warrants the filing of the said petition before the Las Piñas City-RTC.

Particularly, the Court refers to the fact that the application for original registration in this case was only filed before the RTC of Makati City, Branch 134 because, during that time, i.e., December 1976, Las Piñas City had no RTC. Barring this situation, the aforesaid application should not have been filed before the RTC of Makati City, Branch 134 pursuant to the rules on venue prevailing at that time. Under Section 2, Rule 4 of the 1964 Revised Rules of Court, which took effect on January 1, 1964, the proper venue for real actions, such as an application for original registration, lies with the CFI of the province where the property is situated, viz.:

Sec. 2. Venue in Courts of First Instance.— (a) Real actions. — Actions affecting title to, or for recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on, real property, shall be commenced and tried in the province where the property or any part thereof lies.

As the land subject of this case is undeniably situated in Las Piñas City, the application for its original registration should have been filed before the Las Piñas City-RTC were it not for the fact that the said court had yet to be created at the time the application was filed. Be that as it may, and considering further that the complication at hand is actually one of venue and not of jurisdiction (given that RTCs do retain jurisdiction over review of registration decree cases pursuant to Section 32 of PD 1529), the Court, cognizant of the peculiarity of the situation, holds that the Las Piñas City-RTC has the authority over the petition for the review of Decree No. N-217036 filed in this case. Indeed, the filing of the petition for review before the Las Piñas City-RTC was only but a rectificatory implementation of the rules of procedure then-existing, which was temporarily set back only because of past exigencies. In light of the circumstances now prevailing, the Court perceives no compelling reason to deviate from applying the rightful procedure. After all, venue is only a matter of procedure50 and, hence, should succumb to the greater interests of the orderly administration of justice.51

x x x."

Whether or not the signature on the document of consent had been forged.

MANUEL O. FUENTES and LETICIA L. FUENTES, Petitioners, vs. CONRADO G. ROCA, ANNABELLE R. JOSON, ROSE MARIE R. CRISTOBAL and PILAR MALCAMPO, Respondents. G.R. No. 178902, April 21, 2010.


“x x x.

First. The key issue in this case is whether or not Rosario’s signature on the document of consent had been forged. For, if the signature were genuine, the fact that she gave her consent to her husband’s sale of the conjugal land would render the other issues merely academic.

The CA found that Rosario’s signature had been forged. The CA observed a marked difference between her signature on the affidavit of consent15 and her specimen signatures.16 The CA gave no weight to Atty. Plagata’s testimony that he saw Rosario sign the document in Manila on September 15, 1988 since this clashed with his declaration in the jurat that Rosario signed the affidavit in Zamboanga City on January 11, 1989.

The Court agrees with the CA’s observation that Rosario’s signature strokes on the affidavit appears heavy, deliberate, and forced. Her specimen signatures, on the other hand, are consistently of a lighter stroke and more fluid. The way the letters "R" and "s" were written is also remarkably different. The variance is obvious even to the untrained eye.

Significantly, Rosario’s specimen signatures were made at about the time that she signed the supposed affidavit of consent. They were, therefore, reliable standards for comparison. The Fuentes spouses presented no evidence that Rosario suffered from any illness or disease that accounted for the variance in her signature when she signed the affidavit of consent. Notably, Rosario had been living separately from Tarciano for 30 years since 1958. And she resided so far away in Manila. It would have been quite tempting for Tarciano to just forge her signature and avoid the risk that she would not give her consent to the sale or demand a stiff price for it.

What is more, Atty. Plagata admittedly falsified the jurat of the affidavit of consent. That jurat declared that Rosario swore to the document and signed it in Zamboanga City on January 11, 1989 when, as Atty. Plagata testified, she supposedly signed it about four months earlier at her residence in Paco, Manila on September 15, 1988. While a defective notarization will merely strip the document of its public character and reduce it to a private instrument, that falsified jurat, taken together with the marks of forgery in the signature, dooms such document as proof of Rosario’s consent to the sale of the land. That the Fuentes spouses honestly relied on the notarized affidavit as proof of Rosario’s consent does not matter. The sale is still void without an authentic consent.

X x x.”

Residence Visa for spouse of a Filipino citizen

See - https://www.philippine-embassy.org.sg/consular/visa/residence-visa-for-spouse-of-a-filipino-citizen/


"x x x.

Residence Visa for spouse of a Filipino citizen

The Philippine immigration authority issues a permanent residence visa (specifically the 13A Non-Quota Immigrant Visa) to the qualified non-Filipino spouse of a Filipino citizen. The 13A visa is issued only to nationals of these countries:

Algeria, Argentina, Australia, Austria, Belgium, Belize, Bolivia, Botswana, Bosnia & Herzegovina, Brazil, Canada, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cuba, Czech Republic, Denmark, Ecuador, Egypt (visa applicant must be a male and married to a female Philippine citizen), El Salvador, Estonia, Finland, Fiji, France, Gabon, Germany, Greece, Guatemala, Honduras, Hongkong SAR, Indonesia, Iraq, Ireland, Iceland, Israel, Italy, Japan, Korea South, Latvia, Lesotho, Libya (visa applicant must be a male and married to a female Philippine citizen), Lithuania, Luxembourg, Macau SAR, Malaysia, Malta (provided that the marriage took place before 24 April 2001 or the couple has been married for at least 5 years), Marshall Islands, Mexico, Micronesia, Monaco, Montenegro, The Netherlands, New Zealand, Nicaragua, Nigeria, Northern Mariana Island, Norway, Oman (visa applicant must be a male and married to a female Philippine citizen), Papua New Guinea, Paraguay, Peru, Russia, Saudi Arabia (visa applicant must be a male and married to a female Philippine citizen), Senegal, Serbia, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Suriname, Sweden, Switzerland, Thailand, Trinidad and Tobago, Tunisia, Turkey, United Kingdom, Uruguay, USA, Venezuela.

The 13A permanent residence visa is not issued to nationals NOT included in the preceding list.
Requirements:

Personal appearance of the applicant

Two (2) copies of the Accomplished visa application form
Applicant’s passport with at least six months of validity beyond the date of departure from the Philippines (Beginning 01 October 2016, the Philippine Embassy in Singapore will accept only electronic passports and machine readable passports for visa applications. Non-machine readable passports (hand-scripted passports) will not be accepted for visa applications. Beginning 01 January 2017, Philippine immigration authorities will not allow entry into Philippine airports and seaports of foreign nationals holding non-machine readable passports.)
Two (2) photocopies of passport information page of the applicant
Two (2) photocopies of passport information page of the applicant’s Filipino spouse
Original and photocopy of applicant’s birth certificate
Original and photocopy of applicant’s Filipino spouse’s NSO- or PSA-issued birth certificate (non-NSO or non-PSA birth certificates — such as the original Municipal Form No. 102, hospital-issued birth certificate or municipality-issued birth certificate — will not be accepted).
Original and photocopy of marriage certificate

If the applicant and Filipino spouse were married in the Philippines, the Philippine marriage certificate must have been authenticated by the Philippine Department of Foreign Affairs
If the applicant and Filipino spouse were married in Singapore, the marriage must have been registered with the Philippine Embassy in Singapore
If the applicant and Filipino spouse were married in another country, the marriage must have been registered with the Philippine Embassy or Philippine Consulate-General in the country where the marriage took place

If the Filipino spouse was in a previous marriage before marriage to the applicant, the proof of marriage annulment must be presented
Recent photograph, size 3.5 cm x 4.5 cm, colored and taken against a white background
Photocopy of Singapore-issued IC (Permanent Resident IC, PE Pass, E Pass, S Pass, Work Permit, Student Pass, Dependant’s Pass)

Certificate of Clearance (COC) issued by the Singapore Police Force (Application for the COC are made through the SPF e-services website at www.police.gov.sg/e-services under CERTIFICATE OF CLEARANCE or through this link: https://www.police.gov.sg/e-services/apply/certificate-of-clearance/appeal-by-non-singapore-citizens). Before submitting the COC to the Embassy, the COC must be legalized by the Ministry of Foreign Affairs of Singapore (Ministry of Foreign Affairs, Tanglin, Consular Service Counter, 1 Sherwood Road, Singapore 248163).

Evidence of sufficient financial capacity to live in the Philippines, such as, but not limited to, bank statement of accounts, CPF contributions, property deeds, certificates of stocks.
Interview by the visa officer

After the completion of the above requirements, the applicant will be advised to present the following:

Medical examination to be undertaken by a physician in Singapore. The examining physician must accomplish the medical form issued by the Philippine Embassy, together with a soft copy of the x-ray result in a compact disc."

Marital consent in property relations - "Article 124 of the Family Code requires that any disposition or encumbrance of conjugal property must have the written consent of the other spouse; otherwise, such disposition is void. Further, under Article 89 of the Family Code, no waiver of rights, interests, shares, and effects of the conjugal partnership of gains during the marriage can be made except in case of judicial separation of property."

See - https://www.manilatimes.net/2018/09/27/legal-advice/dearpao/spouses-consent-needed-in-disposition-of-property/445664/


"x x x.

Spouse’s consent needed in disposition of property

By Persida Acosta
September 27, 2018
www.manilatimes.net/ 

x x x.

You married your wife in 2010, when the Family Code of the Philippines was already in effect. You failed to mention, however, whether you entered into any property relation when you contracted your marriage, so we presume that the regime of Absolute Community of Property shall be applied to your situation. This is in accordance with Article 75 of the same law which states that “in the absence of marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this code shall govern.”

The house and lot which you bought in 2013 is presumed to belong to the absolute community of property because it was acquired during your marriage. This finds support with Article 91 of the said law which provides that “unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.”

The contract waiving the property to Sheena is a disposition of a property belonging to the absolute community of property. This contract is governed by Article 124 of the same law which states:

“The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.”

In the disposition of property belonging to the absolute community of property that the written consent of the other spouse must be obtained. In the case of Hapitan vs. Spouses Lagradilla and Esmeralda Blacer (G. R. No. 170004, January 13, 2016), the Supreme Court through Honorable Associate Justice Francis H. Jardeleza stated:

“Xxx In effect, by agreeing to the validity of the sale, Nolan disposed of or waived his and Esmeralda’s rights over the house and lot, which the lower courts found to be part of their conjugal property.

Such disposal or waiver by Nolan is not allowed by law. Article 124 of the Family Code requires that any disposition or encumbrance of conjugal property must have the written consent of the other spouse; otherwise, such disposition is void. Further, under Article 89 of the Family Code, no waiver of rights, interests, shares, and effects of the conjugal partnership of gains during the marriage can be made except in case of judicial separation of property. Clearly, Esmeralda did not consent to Nolan disposing or waiving their rights over the house and lot through the Amicable Settlement. xxx”

Applying the above cited case in your situation, the contract disposing any of the properties belonging to the absolute community of property in favor of Sheena requires the written consent of your wife.

x x x."

How to Transfer Land Titles

See - https://www.lamudi.com.ph/journal/how-to-transfer-land-titles-in-the-philippines/


"x x x.

Here’s How to Transfer Land Titles in the Philippines
September 7, 2016; Last Updated on March 4, 2019
www.lamudi.com.ph 

x x x.

Here’s a 6-step guide to help you process the transfer of your land title:

File and secure the required documents at the Office of the Bureau of Internal Revenue Regional District (BIR RDO)

Before making your way to the office, make sure you have secured the complete list of all necessary documents. Bring hard copies of the required documents below:

(1) Original copy and (2) photocopies of the notarized Deed of Absolute Sale (DAS)
(1) Owner’s duplicate copy and (2) photocopies of the Transfer Certificate of Title (TCT) OR the Condominium Certificate of Title (CCT) in case of sale of condominium units
(1) Certified True Copies and (2) photocopies of the latest Tax Declaration for land and improvement of the real property. *NOTE: If the property sold is a vacant lot or no improvements have been made on it, a Sworn Declaration of No Improvement by at least one of the transferees or Certificate of No Improvement issued by the city or municipal assessor is required

Tax Identification Numbers (TIN) of the Seller and Buyer

Take note that there are additional requirements for certain cases. It’s best to double check to minimize numerous back and fourths:

If the person signing on the document is not the owner as it appears on the TCT or CCT: Special Power of Attorney (SPA)
If the SPA is executed abroad: Certification of the Philippine Consulate
If zonal value cannot readily be determined from the documents submitted: Location plan or vicinity map
For documents required in case of mortgage, judicial or extra-judicial settlement of estate, judicial and extra-judicial foreclosure of mortgage, consolidation of ownership, execution sale, and condominium project: Refer to the required documents filed under the Registration of Real Property with the Register of Deeds
Other requirements as may be required by law, rulings, regulations, or other issuances
Secure assessment of transfer taxes at the BIR and Authorized Agent Bank (AAB) OR Municipal OR City Treasurer’s Office

After filing the required documents, a BIR representative will calculate your Capital Gains Tax (CGT) and Documentary Stamp Tax (DST). Afterwards, they will ask you to sign three (3) copies each of the ff:

BIR Form 1706 (CGT)
BIR Form 2000 (DST)

These will then be filed at the AAB. For areas where there are no AABs, they will be filed with the Authorized City or Municipal Treasurer.
File documents at the BIR for the issuance of Certificate Authorizing Registration (CAR) OR BIR Clearance

You will receive a claim slip with the claim date of the CAR, which will be released along with the following documents:
Original copy of the Deed of Absolute Sale, stamped as received by the BIR
Owner’s Duplicate Copy of the TCT or the CCT
Original copies of the BIR Form 1706 (CGT) and Form 2000 (DST), stamped as received by the BIR
Copies of the Tax Declaration for land and improvement

According to BIR Memorandum Order No. 15-03, BIR RDOs should release CARs for all One Time Transaction (ONETT) within five (5) days of submitting all required documents.
Pay the Transfer Taxes and secure the Tax Clearance at the Local Treasurer’s Office

Aside from paying the Transfer Tax, you also need to secure the following documents for the issuance of the Tax Clearance:

(1) Original copy and (1) photocopy of the Deed of Absolute Sale
(1) photocopy of the Tax Declaration
Official Receipt of Payment of Real Property Tax and Special Education Fund Tax for the current year
File documents at the Registry of Deeds for the issuance of new land title

The new owner’s duplicate copy of the TCT and CCT in your name will be released once you have presented all of the following documents:

(1) Original Copy and (3) photocopies of the Deed of Absolute Sale, stamped as received by the BIR
Seller’s Owner’s Duplicate Copy of the TCT or CCT
(1) Original Copy of the CAR
(1) Original Copy of the Tax Clearance
Original Copies of Official Receipts of Payments of CGT, DST, Tax Clearance Certificate, and Transfer Fee
Original Copies of the Current Tax Declaration for land and improvement issued by the local assessor’s office
If the seller or buyer is a corporation, submit the following requirements:
Secretary’s Certificate authorizing the sale of the real property
Certified True Copy of the Articles of Incorporation and By Laws of the seller or buyer corporation
File documents at the Municipal or Provincial Assessor’s Office for the issuance of new Tax Declaration

For the release of the new Tax Declaration, present a photocopy of the following documents:
Deed of Absolute Sale
TCT OR CCT
CAR
Transfer Tax Receipt
Latest Tax Receipt OR Tax Clearance

For some local assessors’ offices (ex. Makati City), additional documents are required:
Subdivision Plan, if lot is subdivided
Full-color photos of the house, lot, or condominium unit

Do not forget to accomplish this last step, as this is often missed out. Remember – ownership of a Tax Declaration should always be done after Land Title Transfer as the name on the Land Title should coincide with the name indicated on the Tax Declaration.

Disclaimer: Although much effort has been made in the creation of this guide, Lamudi Philippines and OMI Land Title Services advise homebuyers to always consult with professionals, such as real estate brokers and lawyers.

x x x."

Wire tapping, RA 4200 -"Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. "

TERESITA SALCEDO-ORTANEZ, petitioner, vs. COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL S. ORTANEZ, respondents. G.R. No. 110662 August 4, 1994.


“x x x.

In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone.

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. . . .

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said Act.

X x x.”

Certiorari under Rule 65 - "Where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress."

TERESITA SALCEDO-ORTANEZ, petitioner, vs. COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL S. ORTANEZ, respondents. G.R. No. 110662 August 4, 1994.

“x x x.

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order.

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress.

X x x.”

Dispute resolution in the Philippines. - What are the time limits for bringing civil claims? - Construction arbitration.

See - https://www.lexology.com/library/detail.aspx?g=992f5031-18ef-47d7-8741-8be25fc388c6&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-01-02&utm_term=


"x x x.


Dispute resolution in Philippines

By Ocampo, Manalo, Valdez & Lim Law Firm
www.lexology.com


x x x.

Litigation
Court system

What is the structure of the civil court system?

The Philippine judicial system comprises first-level courts (municipal, metropolitan and regional trial courts), the Court of Appeals and the Supreme Court. A single judge presides over first-level courts, while the Court of Appeals comprises 69 justices, which sit in divisions of three members. The Supreme Court comprises 15 justices, which sit en banc or in divisions of three, five or seven members.

The jurisdiction of first-level courts depends on the nature of the proceedings and the amounts involved. A metropolitan trial court has exclusive original jurisdiction over civil actions involving amounts at lower limits. Civil actions involving amounts beyond the threshold of metropolitan trial courts, as well as actions incapable of pecuniary estimation, are handled at the first instance by regional trial courts.

Metropolitan trial court decisions can be appealed to a regional trial court. In turn, regional trial court decisions can be appealed to the Court of Appeals and the Supreme Court.

Judges and juries

What is the role of the judge and the jury in civil proceedings?

The judge presiding over civil proceedings:
determines the facts;
ensures that the parties comply with the rules of procedure;
interprets the applicable laws; and
in penning the decision, applies the law.

In the performance of their functions, judges must be impartial. Nonetheless, during a trial, judges may adopt an inquisitorial role only for clarificatory purposes.

The Philippines has not adopted the jury system.

Limitation issues

What are the time limits for bringing civil claims?

The time limits for bringing civil claims are as follows:
eight years from the time possession was lost for actions to recover movable property;
30 years for actions affecting title to or possession of real property;
10 years for actions involving mortgages, written contracts, obligations created by law and judgments;
six years for actions involving oral contracts and quasi-contracts;
four years for actions involving injury to the rights of the claimant and quasi-delicts;
one year for actions involving forcible entry, detainers and defamation; and
five years for all other actions.

Actions to demand a right of way or to bring an action to abate a public or private nuisance are not time limited.

Time limits for bringing civil claims may not be suspended merely on agreement of the parties involved. However, such periods may be interrupted if:

a relevant action is filed before the court;
the creditors produce a written extrajudicial demand; or
the debtor issues a written acknowledgment of the debt.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

Depositions may be commenced before a civil action has been instituted. However, a proper petition for this purpose must be filed with the court. The petition should indicate that the petitioner expects to be a party to an action but is presently unable to commence said action. The petition must also describe the expected action in which the deposition would be used and the facts to be established in and purpose of the deposition. If allowed, the deposition may be used in any action involving the same subject matter.

All other remedies may be availed of only after a civil action has been instituted.

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

A claimant institutes a civil action by filing a complaint and paying the proper fees therefor. The responding party will be notified by the court of the complaint through a summons and issued a copy of the complaint.

Due to greater court accessibility and the relative ease of initiating civil actions, court dockets have become congested. As a response, the Philippine judiciary has actively promoted amicable settlements to resolve civil actions. Thus, after they are instituted and before the trial, civil actions are diverted to mediation over which accredited mediators from the Philippine Mediation Centre preside. Where mediation fails, another chance to arrive at an amicable settlement is available during judicial dispute resolution, presided over by a judge. If mediation fails again and trial ensues until complete resolution of the civil action, a third attempt at mediation is available at the appellate level.

Timetable

What is the typical procedure and timetable for a civil claim?

After the institution of a civil action, the responding party is served with a summons requiring an answer within 15 days and is issued a copy of the complaint. The claimant may file a reply within 10 days of receiving an answer. After all pleadings have been submitted, the court will set a hearing for a pre-trial conference, during which the parties identify:

the admitted facts;
the legal issues to be resolved;
their respective evidence and witnesses; and
the trial dates.

The trial then ensues, during which the parties present their evidence and witnesses. After trial terminates, the court may require the submission of memoranda. Thereafter, the civil action will be submitted for resolution.

The 1987 Constitution requires courts to resolve cases in three months in the first instance, 12 months on appeal (ie, before the Court of Appeals) and 24 months on final appeal (ie, before the Supreme Court). These periods commence after the case is submitted for resolution.

Case management

Can the parties control the procedure and the timetable?

In general, parties cannot control the procedure, as each step in the process is a prerequisite for the next. However, the timetable may be controlled by implication. Parties may request specific deadlines and choose when hearings will be set, subject to the court’s approval. Further, while courts frown on postponements, parties may ask for leave of court to extend reglementary periods for submissions and defer trial dates or hearings for compelling reasons.

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

While there is no express requirement on the matter, diligence dictates that parties preserve their evidence prior to the termination of the trial. After the presentation of their testimonial, documentary and object evidence in open court, parties submit their evidence to the court through a formal offer of evidence. It then becomes the court’s duty to preserve the parties’ evidence until the final disposition of the case.

Parties need not volunteer documents; however, they may seek leave of court to compel another party to produce documents (ie, non-privileged) which are material to the case.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Communications between the following persons are generally privileged:

husband and wife;

attorney and client;
doctor and patient; and
priest and penitent.

In-house lawyers are covered by the attorney-client privilege. However, the privilege may be waived by the person in whose favour the privilege was constituted.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

Parties may exchange written evidence from witnesses prior to the trial proper. In civil actions, parties are required to submit the judicial affidavits of their witnesses to the court at least five days before pre-trial and serve the same on the other parties within the same period. Documentary evidence to be identified and authenticated by the witnesses is attached to these judicial affidavits.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

Evidence is presented through the presentation of witnesses, who are tasked with identifying and authenticating the parties’ documentary and object evidence. Witnesses may be subject to direct examination, cross-examination, re-direct examination and re-cross examination. Moreover, after both parties have concluded the presentation of their evidence, witnesses may be recalled with the court’s permission.

In civil actions, witnesses’ judicial affidavits take the place of their oral direct testimony. Nonetheless, the cross-examination, re-direct examination and re-cross examination of the witnesses are given orally.

If a party wishes to present an unwilling witness summoned by the court through a subpoena, this witness must give oral evidence. The rule on judicial affidavits does not apply to unwilling witnesses.

Interim remedies

What interim remedies are available?

Parties may apply for preliminary attachment, preliminary injunction, receivership, replevin or support as interim remedies. These remedies are available to local proceedings only.

The more common interim remedies are:

preliminary attachment, which is available where the applicable fraudulent circumstances are present in a case and the applicant wishes to attach on the opponent’s property as security for the potential judgment award; and
preliminary injunction, which is available where:
the relief sought in the civil action is the performance or restraining the commission of a certain act;
the performance or non-performance of an act will result in injustice or irreparable damage to the applicant; or
there is a threat of violation of the rights of the applicant with respect to the subject matter of the action.

Remedies

What substantive remedies are available?

Parties may seek relief in the form of specific performance or rescission of contracts and damages. The damages that may be recovered are as follows:

actual damages or the loss capable of pecuniary estimation;
moral damages, which compensates the claimant for (among other things) physical suffering, mental anguish and besmirched reputation;
nominal damages, which is similar to punitive damages;
temperate or moderate damages to compensate for a pecuniary loss where the amount cannot be determined with certainty;
liquidated damages or an indemnity or penalty agreed to be paid based on a contract; and
exemplary damages, which are imposed by way of example for the public good.

Enforcement

What means of enforcement are available?

As regards judgments for money, the officer of the court may simply demand payment from the judgment obligor. If the judgment obligor cannot pay in full, the officer may levy on the properties of the judgment obligor, which includes debts due the judgment obligor and bank deposits. However, certain properties indispensable to the judgment obligor’s livelihood and those qualifying as basic necessities are exempt from execution.

The execution of judgments for specific performance are straightforward. Failure to comply may result in the court directing the performance of the act at the cost of the judgment obligor, or contempt in some cases.

Public access

Are court hearings held in public? Are court documents available to the public?

In general, court hearings for civil cases are conducted in public, except those concerning children and family cases and adoption proceedings, which are confidential in nature. Similarly, case files are generally available to the public, except records concerning children and family cases and adoption proceedings.

Costs

Does the court have power to order costs?

Yes. The courts may rule that either party pay the costs of an action, or that the same be divided. Costs are calculated in accordance with the Supreme Court’s guidelines.

Funding arrangements

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

Yes, contingent fee arrangements are accepted in the Philippines as these are beneficial to parties which have meritorious claims but are unable to secure legal counsel due to insufficient funds. Under contingent fee arrangements, legal fees are usually a fixed percentage of what may be recovered in an action. Hence, a lawyer would be able to collect legal fees only if the litigation succeeds.

A party may commence an action using third-party funding. However, in the strict sense, the court will not recognise the funding arrangement. Hence, the third party may not be able to collect from the judgment award. Instead, the third party may demand payment from the party pursuant to their agreement.

Insurance

Is insurance available to cover all or part of a party’s legal costs?

Yes, legal costs may be covered by liability insurance, including indemnity insurance, director and officer liability insurance and comprehensive general liability insurance.

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

Yes, the Philippines allows class action suits to be filed in regular courts. The general rule for a class suit to be filed is that:

the subject matter is of common or general interest to many persons; and
the persons are so numerous making it impractical to bring them all before the court.

Class action suits aim to obtain relief for or against numerous persons as a group or as an integral entity, and not as separate, distinct individuals whose rights or liabilities are separate from and independent of those affecting the others.

Appeal

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

In general, appeals to higher courts are available against adverse decisions rendered by lower courts. The appeal, when available, usually requires the listing of an assignment of errors by the court in rendering the decision on any question of law or fact that has been raised in the lower court and which is within the issues framed by the parties.

Court of Appeals decisions may be appealed to the Supreme Court, which is deemed the final arbiter for all cases.

Foreign judgments

What procedures exist for recognition and enforcement of foreign judgments?

The Philippines recognises foreign judgments and allows procedures for the enforcement thereof. This practice is based on generally accepted principles of international law, by virtue of the incorporation clause of the Constitution that consider these principles as forming part of the laws of the land even if they are not derived from treaty obligations.

Although Philippine courts have not laid down the exact boundaries by which foreign judgments can be recognised and enforced, there is no question that this remedy is considered among the universally accepted tenets of international law. States generally accept in principle the need for such recognition and enforcement – albeit subject to limitations of varying degrees – and the Philippines is no exception.

Nonetheless, anyone seeking to enforce a foreign judgment or final order may be prevented by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.

Foreign proceedings

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Yes. The Revised Rules of Evidence requires documentary evidence arising from official acts of a sovereign authority, or its official bodies, tribunals or public officers to be accompanied by:

its official publication; ora copy attested by the officer having legal custody of the document and a certificate that said officer has custody.

The certificate may be made by any officer (ie, secretary of the embassy or legation, consul general, consul, vice consul or consular agent) in the foreign service of the Philippines stationed in the pertinent foreign country. The certificate must also be authenticated by the seal of their office. Public documents not covered above must be authenticated at the Philippine embassy in the foreign country. Notably, the Philippines recently acceded to the Apostille Convention, which allows for a simplified process in authenticating foreign-made or foreign-kept documents.

As regards oral evidence, depositions and written interrogatories are acceptable modes of preserving testimony of witnesses located outside the Philippines.

Arbitration

UNCITRAL Model Law

Is the arbitration law based on the UNCITRAL Model Law?

Yes. The Alternative Dispute Resolution Act 2004 categorically adopts in its entirety the UNCITRAL Model Law, both for international and domestic commercial arbitration.

Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

An agreement to arbitrate a controversy arising between parties, as well as a submission to arbitrate an existing controversy, must be in writing and subscribed by the party sought to be charged or by their lawful agent.

Choice of arbitrator

If the arbitration agreement and any relevant rules are silent on the matter, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?

In the absence of an agreed method to select an arbitrator, the parties must seek guidance from a first-level court, which will designate an arbitrator or arbitrators.

The court may appoint one or three arbitrators, according to the importance of the controversy involved.

The appointment of an arbitrator may be challenged if an arbitrator discovers any circumstances likely to create a presumption of bias or which they believe might disqualify them as an impartial arbitrator; the parties are made aware of such circumstances. Such challenges can be made even after arbitration has begun.

Arbitrator options

What are the options when choosing an arbitrator or arbitrators?

A person who wishes to be an arbitrator should be of legal age, with no imposed restrictions as to their capacity to exercise their civil rights and must be able to read and write. No person appointed to serve as an arbitrator may be related by blood or marriage within the sixth degree to either party to the controversy. No person may serve as an arbitrator in any proceeding if they:

have or have had financial, fiduciary or other interest in the controversy or cause to be decided or in the result of the proceeding; or
have any partiality or prejudice that may gravely affect the right of a party to a fair award.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

Yes, there are specific provisions on how to initiate arbitration, appoint arbitrators and conduct arbitration hearings under Republic Act 876 (the Arbitration Law) and Republic Act 9285 (the Alternative Dispute Resolution Act 2004) and its implementing rules and regulations.

Arbitration is allowed when:
Two or more persons agree to submit to arbitration any controversy existing between them at the time of the submission, which controversy may be the subject of an action.
The parties to a contract agreed in said contract to settle by arbitration a controversy thereafter arising between them.

In order to initiate arbitration, the provisions of the submission or contract must be complied with. For instance, where a prior demand is required under the arbitration contract, the claimant must serve on the responding party a demand for arbitration containing the nature of the controversy, the amount involved and the relief sought.

On the other hand, where a party to a submission to arbitration refuses to arbitrate, the other party must also serve a demand for arbitration as stated above.

However, the submission or contract may be revoked on such grounds that exist under Philippine law for revocation of any contract.

Further, the following matters cannot be the subject of arbitration by virtue of certain public policies that may be affected or violated:

labour disputes covered by the Labour Code;
a person’s civil status;
marriage validity;
grounds for legal separation;
courts’ jurisdiction;
future legitime (ie, a succession issue);
criminal liability; and
future support (ie, a family law issue).

Court intervention

On what grounds can the court intervene during an arbitration?

Judicial intervention is permitted if:

it is unclear whether the arbitration agreement and its provisions are valid and enforceable;
it is unclear whether a dispute is covered by the arbitration agreement;
an action demanding arbitration should be filed;
interim remedies are necessary to conserve the subject matter of arbitration pending appointment of the arbitrators;
a petition to quash or vacate the award is warranted;
the confirmation and enforcement of the award is due;
the appointment or challenge of an arbitration is necessary due to an event of default of the appointing authority; or
appeals from a judgment of the court are filed.

Interim relief

Do arbitrators have powers to grant interim relief?

Yes. A request for an interim measure of protection to prevent irreparable loss, preserve evidence or compel the performance of an act may be made with the arbitral tribunal after its constitution and during the arbitral proceedings. The arbitral tribunal is deemed constituted when the final nominated arbitrator (ie, the sole arbitrator or the third arbitrator) has accepted the nomination and the party making the request received written communication of such acceptance.

Where an arbitral tribunal is powerless to act or unable to act effectively, the request may be made with the regular courts. If the arbitral tribunal is not yet constituted, the request for an interim measure will have to be filed in court.

Award

When and in what form must the award be delivered?

The parties may agree on the period within which the award must be rendered. Such agreement must be in writing. In the absence of an agreement, arbitrators must render an award within 30 days after the closing of the hearings or, if the oral hearings have been waived, within 30 days after the arbitrators have officially closed the proceedings in lieu of oral hearings. The parties may likewise agree to extend this period.

The award must be written and signed and acknowledged by the sole arbitrator or by a majority of the arbitrators, if more than one. Each party will be provided with a copy of the award.

Appeal

On what grounds can an award be appealed to the court?

The agreement by the parties to refer a dispute to arbitration means that the arbitral award is final and binding. A party to an arbitration is therefore precluded from filing an appeal or a petition for certiorari questioning the merits of an arbitral award.

Unless a public policy is violated or the substance and format of the arbitration proceedings are infirm, as provided for under the UNCITRAL Model Law, the arbitral award may not be vacated by filing an appeal or set aside by filing an action with the appellate courts.

Enforcement

What procedures exist for enforcement of foreign and domestic awards?

Domestic arbitral awards are executed in the same manner as final and executory decisions of first-level courts.

The recognition and enforcement of international arbitral awards are governed by the rules set out in the New York Convention, to which the Philippines is a signatory.

Costs

Can a successful party recover its costs?

Under Philippine arbitral rules, costs are generally borne equally by the parties unless otherwise agreed on or directed by the arbitrator or arbitral tribunal.

There are specific instances in court filings where the parties which are unsuccessful in opposing the enforcement of arbitral awards or in questioning the jurisdiction of the arbitral tribunal are made to shoulder the costs of the suit, including the payment of lawyers’ fees incurred by the prevailing party.

Alternative dispute resolution

Types of ADR

What types of ADR process are commonly used? Is a particular ADR process popular?

Aside from arbitration, the Philippines recognises other forms of ADR. Acceptable forms of ADR include:

mediation;
conciliation;
early neutral evaluation;
mini trial; or
any combination thereof.

The most commonly used ADR methods (and mandated by the courts) are mediation and judicial dispute resolution conferences. These are normally conducted before the trial proper begins.

Requirements for ADR

Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?

In both civil and criminal cases, mediation and judicial dispute resolution conferences are ADR methods that parties to a case must undergo during the proceedings or before the trial begins. In criminal cases, only the civil aspect of the claim can be the subject of ADR proceedings.

Miscellaneous

Interesting features

Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

If mediation fails and the case proceeds to trial, discussions or statements made during ADR hearings are generally inadmissible as evidence against the party making the statement.

Further, even at the appellate level, mediation is available in civil claims (except for those that cannot be compromised as a matter of public policy) and for minor crimes. Tax court and quasi-judicial agency judgments can also be the subject of appellate court mediation proceedings.

Update and trends

Recent developments

Are there any proposals for dispute resolution reform? When will any reforms take effect? (Please also mention any ground-breaking recent cases, etc.)

One of the more contentious issues in arbitration involves questions of law on jurisdiction, particularly cases heard and tried before the Construction Industry Arbitration Commission (CIAC). The construction industry in the Philippines is at the forefront of arbitration law practice due to the fact that the CIAC was one of the earliest arbitral bodies created by law (ie, in 1985) and has the richest experience among all other arbitral bodies.

The law creating the CIAC provides that the CIAC has original and exclusive jurisdiction in commercial disputes between parties to a construction agreement where there exists an arbitration clause, regardless of whether the parties themselves specified a different arbitration procedure or tribunal and venue (outside the Philippines) to hear and decide the dispute.

The Supreme Court has generally upheld the CIAC’s right to assume jurisdiction regardless of the intent of the parties in the contract to confer jurisdiction to a different arbitral tribunal. However, this is particularly controversial, as one of the main elements of arbitration is giving importance to the wishes of the parties, including their choice of jurisdiction. Depriving the parties of this option (at least in construction agreements) nullifies one of the key elements of arbitration.

There has been a move to soften this position among some members of the CIAC, but so far the Supreme Court has made no ruling to the contrary. Notably, in a recent Supreme Court decision, the CIAC’s jurisdiction was expanded to include government contracts involving construction projects even where the contract contains no arbitration clause.

Aside from the CIAC, one of the more popular arbitration centres is the privately run Philippine Dispute Resolution Centre (PDRCI). In recent years the number of cases referred to the PDRCI has steadily grown.

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