Monday, January 9, 2012

DOCTRINE OF PROCESSUAL PRESUMPTION

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 112573 February 9, 1995

NORTHWEST ORIENT AIRLINES, INC. petitioner,
vs.
COURT OF APPEALS and C.F. SHARP & COMPANY INC., respondents.

PADILLA, JR., J.:

This petition for review on certiorari seeks to set aside the decision of the Court of Appeals affirming the dismissal of the petitioner's complaint to enforce the judgment of a Japanese court. The principal issue here is whether a Japanese court can acquire jurisdiction over a Philippine corporation doing business in Japan by serving summons through diplomatic channels on the Philippine corporation at its principal office in Manila after prior attempts to serve summons in Japan had failed.

Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST), a corporation organized under the laws of the State of Minnesota, U.S.A., sought to enforce in Civil Case No. 83-17637 of the Regional Trial Court (RTC), Branch 54, Manila, a judgment rendered in its favor by a Japanese court against private respondent C.F. Sharp & Company, Inc., (hereinafter SHARP), a corporation incorporated under Philippine laws.

As found by the Court of Appeals in the challenged decision of 10 November 1993, 1 the following are the factual and procedural antecedents of this controversy:

On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp & Company, through its Japan branch, entered into an International Passenger Sales Agency Agreement, whereby the former authorized the latter to sell its air transportation tickets. Unable to remit the proceeds of the ticket sales made by defendant on behalf of the plaintiff under the said agreement, plaintiff on March 25, 1980 sued defendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticket sales, with claim for damages.

On April 11, 1980, a writ of summons was issued by the 36th Civil Department, Tokyo District Court of Japan against defendant at its office at the Taiheiyo Building, 3rd floor, 132, Yamashita-cho, Naka-ku, Yokohoma, Kanagawa Prefecture. The attempt to serve the summons was unsuccessful because the bailiff was advised by a person in the office that Mr. Dinozo, the person believed to be authorized to receive court processes was in Manila and would be back on April 24, 1980.

On April 24, 1980, bailiff returned to the defendant's office to serve the summons. Mr. Dinozo refused to accept the same claiming that he was no longer an employee of the defendant.

After the two attempts of service were unsuccessful, the judge of the Tokyo District Court decided to have the complaint and the writs of summons served at the head office of the defendant in Manila. On July 11, 1980, the Director of the Tokyo District Court requested the Supreme Court of Japan to serve the summons through diplomatic channels upon the defendant's head office in Manila.

On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit the writ of summons (p. 276, Records). Despite receipt of the same, defendant failed to appear at the scheduled hearing. Thus, the Tokyo Court proceeded to hear the plaintiff's complaint and on [January 29, 1981], rendered judgment ordering the defendant to pay the plaintiff the sum of 83,158,195 Yen and damages for delay at the rate of 6% per annum from August 28, 1980 up to and until payment is completed (pp. 12-14, Records).

On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the judgment. Defendant not having appealed the judgment, the same became final and executory.

Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a suit for enforcement of the judgment was filed by plaintiff before the Regional Trial Court of Manila Branch 54. 2

On July 16, 1983, defendant filed its answer averring that the judgment of the Japanese Court sought to be enforced is null and void and unenforceable in this jurisdiction having been rendered without due and proper notice to the defendant and/or with collusion or fraud and/or upon a clear mistake of law and fact (pp. 41-45, Rec.).

Unable to settle the case amicably, the case was tried on the merits. After the plaintiff rested its case, defendant on April 21, 1989, filed a Motion for Judgment on a Demurrer to Evidence based on two grounds:
(1) the foreign judgment sought to be enforced is null and void for want of jurisdiction and (2) the said judgment is contrary to Philippine law and public policy and rendered without due process of law. Plaintiff filed its opposition after which the court a quo rendered the now assailed decision dated June 21, 1989 granting the demurrer motion and dismissing the complaint (Decision, pp. 376-378, Records). In granting the demurrer motion, the trial court held that:

The foreign judgment in the Japanese Court sought in this action is null and void for want of jurisdiction over the person of the defendant considering that this is an action in personam; the Japanese Court did not acquire jurisdiction over the person of the defendant because jurisprudence requires that the defendant be served with summons in Japan in order for the Japanese Court to acquire jurisdiction over it, the process of the Court in Japan sent to the Philippines which is outside Japanese jurisdiction cannot confer jurisdiction over the defendant in the case before the Japanese Court of the case at bar. Boudard versus Tait 67 Phil. 170. The plaintiff contends that the Japanese Court acquired jurisdiction because the defendant is a resident of Japan, having four (4) branches doing business therein and in fact had a permit from the Japanese government to conduct business in Japan (citing the exhibits presented by the plaintiff); if this is so then service of summons should have been made upon the defendant in Japan in any of these alleged four branches; as admitted by the plaintiff the service of the summons issued by the Japanese Court was made in the Philippines thru a Philippine Sheriff. This Court agrees that if the defendant in a foreign court is a resident in the court of that foreign court such court could acquire jurisdiction over the person of the defendant but it must be served upon the defendant in the territorial jurisdiction of the foreign court. Such is not the case here because the defendant was served with summons in the Philippines and not in Japan.

Unable to accept the said decision, plaintiff on July 11, 1989 moved for reconsideration of the decision, filing at the same time a conditional Notice of Appeal, asking the court to treat the said notice of appeal "as in effect after and upon issuance of the court's denial of the motion for reconsideration."

Defendant opposed the motion for reconsideration to which a Reply dated August 28, 1989 was filed by the plaintiff.

On October 16, 1989, the lower court disregarded the Motion for Reconsideration and gave due course to the plaintiff's Notice of Appeal. 3

In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its reliance upon Boudard vs. Tait 4 wherein it was held that "the process of the court has no extraterritorial effect and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state." To support its position, the Court of Appeals further stated:

In an action strictly in personam, such as the instant case, personal service of summons within the forum is required for the court to acquire jurisdiction over the defendant (Magdalena Estate Inc. vs. Nieto, 125 SCRA 230). To confer jurisdiction on the court, personal or substituted service of summons on the defendant not extraterritorial service is necessary (Dial Corp vs. Soriano, 161 SCRA 739).

But while plaintiff-appellant concedes that the collection suit filed is an action in personam, it is its theory that a distinction must be made between an action in personam against a resident defendant and an action in personam against a non-resident defendant. Jurisdiction is acquired over a non-resident defendant only if he is served personally within the jurisdiction of the court and over a resident defendant if by personal, substituted or constructive service conformably to statutory authorization. Plaintiff-appellant argues that since the defendant-appellee maintains branches in Japan it is considered a resident defendant. Corollarily, personal, substituted or constructive service of summons when made in compliance with the procedural rules is sufficient to give the court jurisdiction to render judgment in personam.

Such an argument does not persuade.

It is a general rule that processes of the court cannot lawfully be served outside the territorial limits of the jurisdiction of the court from which it issues (Carter vs. Carter; 41 S.E. 2d 532, 201) and this is regardless of the residence or citizenship of the party thus served (Iowa-Rahr vs. Rahr, 129 NW 494, 150 Iowa 511, 35 LRC, NS, 292, Am. Case 1912 D680). There must be actual service within the proper territorial limits on defendant or someone authorized to accept service for him. Thus, a defendant, whether a resident or not in the forum where the action is filed, must be served with summons within that forum.

But even assuming a distinction between a resident defendant and non-resident defendant were to be adopted, such distinction applies only to natural persons and not in the corporations. This finds support in the concept that "a corporation has no home or residence in the sense in which those terms are applied to natural persons" (Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607). Thus, as cited by the defendant-appellee in its brief:

Residence is said to be an attribute of a natural person, and can be predicated on an artificial being only by more or less imperfect analogy. Strictly speaking, therefore, a corporation can have no local residence or habitation. It has been said that a corporation is a mere ideal existence, subsisting only in contemplation of law — an invisible being which can have, in fact, no locality and can occupy no space, and therefore cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing Kimmerle v. Topeka, 88 370, 128 p. 367; Wood v. Hartfold F. Ins. Co., 13 Conn 202)

Jurisprudence so holds that the foreign or domestic character of a corporation is to be determined by the place of its origin where its charter was granted and not by the location of its business activities (Jennings v. Idaho Rail Light & P. Co., 26 Idaho 703, 146 p. 101), A corporation is a "resident" and an inhabitant of the state in which it is incorporated and no other (36 Am. Jur. 2d, p. 49).

Defendant-appellee is a Philippine Corporation duly organized under the Philippine laws. Clearly, its residence is the Philippines, the place of its incorporation, and not Japan. While defendant-appellee maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a resident of another by engaging in business there even though licensed by that state and in terms given all the rights and privileges of a domestic corporation (Galveston H. & S.A.R. Co. vs. Gonzales, 151 US 496, 38 L ed. 248, 4 S Ct. 401).

On this premise, defendant appellee is a non-resident corporation. As such, court processes must be served upon it at a place within the state in which the action is brought and not elsewhere (St. Clair vs. Cox, 106 US 350, 27 L ed. 222, 1 S. Ct. 354). 5

It then concluded that the service of summons effected in Manila or beyond the territorial boundaries of Japan was null and did not confer jurisdiction upon the Tokyo District Court over the person of SHARP; hence, its decision was void.

Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case to this Court contending that the respondent court erred in holding that SHARP was not a resident of Japan and that summons on SHARP could only be validly served within that country.

A foreign judgment is presumed to be valid and binding in the country from which it comes, until the contrary is shown. It is also proper to presume the regularity of the proceedings and the giving of due notice therein. 6

Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in personam of a tribunal of a foreign country having jurisdiction to pronounce the same is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title. The judgment may, however, be assailed by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or elsewhere, enjoys the presumption that it was acting in the lawful exercise of jurisdiction and has regularly performed its official duty.

Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity. 7 Being the party challenging the judgment rendered by the Japanese court, SHARP had the duty to demonstrate the invalidity of such judgment. In an attempt to discharge that burden, it contends that the extraterritorial service of summons effected at its home office in the Philippines was not only ineffectual but also void, and the Japanese Court did not, therefore acquire jurisdiction over it.

It is settled that matters of remedy and procedure such as those relating to the service of process upon a defendant are governed by the lex fori or the internal law of the forum. 8 In this case, it is the procedural law of Japan where the judgment was rendered that determines the validity of the extraterritorial service of process on SHARP. As to what this law is is a question of fact, not of law. It may not be taken judicial notice of and must be pleaded and proved like any other fact. 9 Sections 24 and 25, Rule 132 of the Rules of Court provide that it may be evidenced by an official publication or by a duly attested or authenticated copy thereof. It was then incumbent upon SHARP to present evidence as to what that Japanese procedural law is and to show that under it, the assailed extraterritorial service is invalid. It did not. Accordingly, the presumption of validity and regularity of the service of summons and the decision thereafter rendered by the Japanese court must stand.

Alternatively in the light of the absence of proof regarding Japanese
law, the presumption of identity or similarity or the so-called processual presumption
10 may be invoked. Applying it, the Japanese law on the matter is presumed to be similar with the Philippine law on service of summons on a private foreign corporation doing business in the Philippines. Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign corporation doing business in the Philippines, service may be made: (1) on its resident agent designated in accordance with law for that purpose, or, (2) if there is no such resident agent, on the government official designated by law to that effect; or (3) on any of its officers or agents within the Philippines.

If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and service of summons is without force and gives the court no jurisdiction unless made upon him. 11

Where the corporation has no such agent, service shall be made on the government official designated by law, to wit: (a) the Insurance Commissioner in the case of a foreign insurance company; (b) the Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and Exchange Commission, in the case of other foreign corporations duly licensed to do business in the Philippines. Whenever service of process is so made, the government office or official served shall transmit by mail a copy of the summons or other legal proccess to the corporation at its home or principal office. The sending of such copy is a necessary part of the service. 12

SHARP contends that the laws authorizing service of process upon the Securities and Exchange Commission, the Superintendent of Banks, and the Insurance Commissioner, as the case may be, presuppose a situation wherein the foreign corporation doing business in the country no longer has any branches or offices within the Philippines. Such contention is belied by the pertinent provisions of the said laws. Thus, Section 128 of the Corporation Code 13 and Section 190 of the Insurance Code 14 clearly contemplate two situations: (1) if the corporation had left the Philippines or had ceased to transact business therein, and (2) if the corporation has no designated agent. Section 17 of the General Banking Act 15 does not even speak a corporation which had ceased to transact business in the Philippines.

Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to receive court processes in Japan. This silence could only mean, or least create an impression, that it had none. Hence, service on the designated government official or on any of SHARP's officers or agents in Japan could be availed of. The respondent, however, insists that only service of any of its officers or employees in its branches in Japan could be resorted to. We do not agree. As found by the respondent court, two attempts at service were made at SHARP's Yokohama branch. Both were unsuccessful. On the first attempt, Mr. Dinozo, who was believed to be the person authorized to accept court process, was in Manila. On the second, Mr. Dinozo was present, but to accept the summons because, according to him, he was no longer an employee of SHARP. While it may be true that service could have been made upon any of the officers or agents of SHARP at its three other branches in Japan, the availability of such a recourse would not preclude service upon the proper government official, as stated above.

As found by the Court of Appeals, it was the Tokyo District Court which ordered that summons for SHARP be served at its head office in the Philippine's after the two attempts of service had failed. 16 The Tokyo District Court requested the Supreme Court of Japan to cause the delivery of the summons and other legal documents to the Philippines. Acting on that request, the Supreme Court of Japan sent the summons together with the other legal documents to the Ministry of Foreign Affairs of Japan which, in turn, forwarded the same to the Japanese Embassy in Manila . Thereafter, the court processes were delivered to the Ministry (now Department) of Foreign Affairs of the Philippines, then to the Executive Judge of the Court of First Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy Sheriff Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is equivalent to service on the proper government official under Section 14, Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code. Hence, SHARP's contention that such manner of service is not valid under Philippine laws holds no water. 17

In deciding against the petitioner, the respondent court sustained the trial court's reliance on Boudard vs. Tait 18 where this Court held:

The fundamental rule is that jurisdiction in personam over nonresidents, so as to sustain a money judgment, must be based upon personal service within the state which renders the judgment.

xxx xxx xxx

The process of a court, has no extraterritorial effect, and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state. Nor has a judgment of a court of a foreign country against a resident of this country having no property in such foreign country based on process served here, any effect here against either the defendant personally or his property situated here.

Process issuing from the courts of one state or country cannot run into another, and although a nonresident defendant may have been personally served with such process in the state or country of his domicile, it will not give such jurisdiction as to authorize a personal judgment against him.

It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto 19 and Dial Corp. vs. Soriano, 20 as well as the principle laid down by the Iowa Supreme Court in the 1911 case of Raher vs. Raher. 21

The first three cases are, however, inapplicable. Boudard involved the enforcement of a judgment of the civil division of the Court of First Instance of Hanoi, French Indo-China. The trial court dismissed the case because the Hanoi court never acquired jurisdiction over the person of the defendant considering that "[t]he, evidence adduced at the trial conclusively proves that neither the appellee [the defendant] nor his agent or employees were ever in Hanoi, French Indo-China; and that the deceased Marie Theodore Jerome Boudard had never, at any time, been his employee." In Magdalena Estate, what was declared invalid resulting in the failure of the court to acquire jurisdiction over the person of the defendants in an action in personam was the service of summons through publication against non-appearing resident defendants. It was claimed that the latter concealed themselves to avoid personal service of summons upon them. In Dial, the defendants were foreign corporations which were not, domiciled and licensed to engage in business in the Philippines and which did not have officers or agents, places of business, or properties here. On the other hand, in the instant case, SHARP was doing business in Japan and was maintaining four branches therein.

Insofar as to the Philippines is concerned, Raher is a thing of the past. In that case, a divided Supreme Court of Iowa declared that the principle that there can be no jurisdiction in a court of a territory to render a personal judgment against anyone upon service made outside its limits was applicable alike to cases of residents and non-residents. The principle was put at rest by the United States Supreme Court when it ruled in the 1940 case of Milliken vs. Meyer 22 that domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service or personal service without the state. This principle is embodied in section 18, Rule 14 of the Rules of Court which allows service of summons on residents temporarily out of the Philippines to be made out of the country. The rationale for this rule was explained in Milliken as follows:

[T]he authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. "Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable" from the various incidences of state citizenship. The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. 23

The domicile of a corporation belongs to the state where it was incorporated. 24 In a strict technical sense, such domicile as a corporation may have is single in its essence and a corporation can have only one domicile which is the state of its creation. 25

Nonetheless, a corporation formed in one-state may, for certain purposes, be regarded a resident in another state in which it has offices and transacts business. This is the rule in our jurisdiction and apropos thereto, it may be necessery to quote what we stated in State Investment House, Inc, vs. Citibank, N.A., 26 to wit:

The issue is whether these Philippine branches or units may be considered "residents of the Philippine Islands" as that term is used in Section 20 of the Insolvency Law . . . or residents of the state under the laws of which they were respectively incorporated. The answer cannot be found in the Insolvency Law itself, which contains no definition of the term, resident, or any clear indication of its meaning. There are however other statutes, albeit of subsequent enactment and effectivity, from which enlightening notions of the term may be derived.

The National Internal Revenue Code declares that the term "'resident foreign corporation' applies to a foreign corporation engaged in trade or business within the Philippines," as distinguished from a "'non-resident foreign corporation' . . . (which is one) not engaged in trade or bussiness within the Philippines." [Sec. 20, pars. (h) and (i)].

The Offshore Banking Law, Presidential Decree No. 1034, states "that branches, subsidiaries, affiliation, extension offices or any other units of corporation or juridical person organized under the laws of any foreign country operating in the Philippines shall be considered residents of the Philippines. [Sec. 1(e)].

The General Banking Act, Republic Act No. 337, places "branches and agencies in the Philippines of foreign banks . . . (which are) called Philippine branches," in the same category as "commercial banks, savings associations, mortgage banks, development banks, rural banks, stock savings and loan associations" (which have been formed and organized under Philippine laws), making no distinction between the former and the latter in so far as the terms "banking institutions" and "bank" are used in the Act [Sec. 2], declaring on the contrary that in "all matters not specifically covered by special provisions applicable only to foreign banks, or their branches and agencies in the Philippines, said foreign banks or their branches and agencies lawfully doing business in the Philippines "shall be bound by all laws, rules, and regulations applicable to domestic banking corporations of the same class, except such laws, rules and regulations as provided for the creation, formation, organization, or dissolution of corporations or as fix the relation, liabilities, responsibilities, or duties of members, stockholders or officers of corporation. [Sec. 18].

This court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc. vs. Philippine Advertising Corp., 57 Phil. 607] that a foreign corporation licitly doing business in the Philippines, which is a defendant in a civil suit, may not be considered a non-resident within the scope of the legal provision authorizing attachment against a defendant not residing in the Philippine Islands; [Sec. 424, in relation to Sec. 412 of Act No. 190, the Code of Civil Procedure; Sec. 1(f), Rule 59 of the Rules of 1940, Sec. 1(f), Rule 57, Rules of 1964] in other words, a preliminary attachment may not be applied for and granted solely on the asserted fact that the defendant is a foreign corporation authorized to do business in the Philippines — and is consequently and necessarily, "a party who resides out of the Philippines." Parenthetically, if it may not be considered as a party not residing in the Philippines, or as a party who resides out of the country, then, logically, it must be considered a party who does reside in the Philippines, who is a resident of the country. Be this as it may, this Court pointed out that:

. . . Our laws and jurisprudence indicate a purpose to assimilate foreign corporations, duly licensed to do business here, to the status of domestic corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells Co. vs. Henry W. Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it would be entirely out of line with this policy should we make a discrimination against a foreign corporation, like the petitioner, and subject its property to the harsh writ of seizure by attachment when it has complied not only with every requirement of law made specially of foreign corporations, but in addition with every requirement of law made of domestic corporations. . . .

Obviously, the assimilation of foreign corporations authorized to do business in the Philippines "to the status of domestic corporations, subsumes their being found and operating as corporations, hence, residing, in the country.

The same principle is recognized in American law: that the residence of a corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions . . .;" that it is considered as dwelling "in the place where its business is done . . .," as being "located where its franchises are exercised . . .," and as being "present where it is engaged in the prosecution of the corporate enterprise;" that a "foreign corporation licensed to do business in a state is a resident of any country where it maintains an office or agent for transaction of its usual and customary business for venue purposes;" and that the "necessary element in its signification is locality of existence." [Words and Phrases, Permanent Ed., vol. 37, pp. 394, 412, 493].

In as much as SHARP was admittedly doing business in Japan through its four duly registered branches at the time the collection suit against it was filed, then in the light of the processual presumption, SHARP may be deemed a resident of Japan, and, as such, was amenable to the jurisdiction of the courts therein and may be deemed to have assented to the said courts' lawful methods of serving process. 27

Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid not only under the processual presumption but also because of the presumption of regularity of performance of official duty.

We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary damages to be without merit. We find no evidence that would justify an award for attorney's fees and litigation expenses under Article 2208 of the Civil Code of the Philippines. Nor is an award for exemplary damages warranted. Under Article 2234 of the Civil Code, before the court may consider the question of whether or not exemplary damages should be awarded, the plaintiff must show that he is entitled to moral, temperate, or compensatory damaged. There being no such proof presented by NORTHWEST, no exemplary damages may be adjudged in its favor.

WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is AFFIRMED insofar as it denied NORTHWEST's claims for attorneys fees, litigation expenses, and exemplary damages but REVERSED insofar as in sustained the trial court's dismissal of NORTHWEST's complaint in Civil Case No. 83-17637 of Branch 54 of the Regional Trial Court of Manila, and another in its stead is hereby rendered ORDERING private respondent C.F. SHARP L COMPANY, INC. to pay to NORTHWEST the amounts adjudged in the foreign judgment subject of said case, with interest thereon at the legal rate from the filing of the complaint therein until the said foreign judgment is fully satisfied.

Costs against the private respondent.

SO ORDERED.

Padilla, Bellosillo, Quaison and Kapunan, JJ., concur.

Footnotes

1 Annex "A" of Petition. Per Associate Justice Antonio M. Martinez; concurred in by Associate Justices Cancio C. Garcia and Ramon Mabutas, Jr.

2 This is Civil Case No. 83-17637.

3 Rollo, 28-31.

4 67 Phil. 170 [1939].

5 Rollo, 32-34.

6 47 Am Jur 2d Judgments § 1237 (1969).

7 47 Am Jur 2d Judgments § 1237 (1969).

8 JOVITO R. SALONGA, Private International Law, 100, 1967 3rd ed.; 16 Am Jur 2d Conflict of laws § 125 (1979).

9 FLORENZ D. REGALADO, Remedial Law Compedium, vol. 2, 1989 ed., 526, citing In re Estate of Johnson, 39 Phil. 156 [1918] and Fluemer vs. Hix, 54 Phil. 610 [1930]; EDGARDO L. PARAS, Philippine Conflict of Laws, 1984 ed., 45, citing Adong vs. Cheong Seng Gee, 43 Phil. 43 [1922] and Sy Joc Lieng vs. Syquia, 16 Phil. 137 [1910].

10 Lim vs. Collector of Customs, 36 Phil. 472 [1917]; International Harvester Co. vs. Hamburg-American Line, 42 Phil. 845 [1918]; Suntay vs. Suntay, 95 Phil. 500 [1954]; Beam vs. Yatco, 82 Phil. 30 [1948]; Collector of Internal Revenue vs. Fisher, 1 SCRA 93 [1961].

11 Poizat vs. Morgan, 28 Phil. 597 [1914]; H.B. Zachry Co. vs. Court of Appeals, G.R. No. 106989, 10 May 1994.

12 Section 190, Insurance Code; Section 17, General Banking Act; Section 128, Corporation Code.

13 It reads:

Sec. 128. Resident Agent; service of process. — . . . Any such foreign corporation shall likewise execute and file with the Securities end Exchange Commission an agreement or stipulation, executed by the proper authorities of said corporation, in form and substance as follows:

. . . if at any time said corporation shall cease to transact business in the Philippines, or shall be without any resident agent in the Philippines on whom any summons or other legal processes may be served, then in any action or proceeding arising out of any business or transaction which occurred in the Philippines, service of any summons or other legal process may be made upon the Securities and Exchange Commission and that such service shall have the same force and effect as if made upon the duly-authorized officers of .the corporation at its home office. (Emphasis supplied).

14 It reads:

Sec. 190. . . . Any such foreign corporation shall, as further condition precedent to the transaction of insurance business in the Philippines, make and file with the Commissioner an agreement or stipulation, executed by the proper authorities of said company in form and substance as follows:

. . . if at any time said company shall leave the Philippines, or cease to transact business therein, or shall be without any agent in the Philippines on whom any notice, proof of loss, summons, or legal process may be served, then in any action or proceeding out of any business or transaction which occurred in the Philippines, service of any notice provided by law, or insurance policy, proof of loss, summons or other legal process may be made upon the Insurance Commissioner, and that such service upon the Insurance Commissioner shall have the same force and effect as if made upon the company. (Emphasis supplied).

15 It provides:

Sec. 17. . . .

xxx xxx xxx

Should there be no person authorized by the corporation upon whom service of summons, processes, and all legal notices may be made, service of summons, processes, and legal notices may be made upon the Superintendent of Banks and such service shall be as effective as if made upon the corporation or upon its duly authorized agent. (Emphasis supplied).

16 Decision of the Court of Appeals, 2; Rollo, 29.

17 Appellee's Brief, 18.

18 Supra note 4 at 174-175 (citations omitted).

19 125 SCRA 758 [1983].

20 161 SCRA 737 [1988].

21 150 Iowa 511, 129 NW 494.

22 311 U.S. 457.

23 Id., at 463-464 (citations omitted).

24 18 A Jur. 2d Corporations § 159 (1965).

25 36 48 Jur 2d Foreign Corporations § 32 (1968).

26 203 SCRA 9, 18-20 [1991].

27 36 Am Jur 2d Foreign Corporations § 516 (968).

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 133876 December 29, 1999

BANK OF AMERICA, NT and SA, petitioner,
vs.
AMERICAN REALTY CORPORATION and COURT OF APPEALS, respondents.

BUENA, J.:

Does a mortgage-creditor waive its remedy to foreclose the real estate mortgage constituted over a third party mortgagor's property situated in the Philippines by filing an action for the collection of the principal loan before foreign courts?

Sought to be reversed in the instant petition for review on certiorari under Rule 45 of the Rules of Court are the decision 1 of public respondent Court of Appeals in CA G.R. CV No. 51094, promulgated on 30 September 1997 and its resolution, 2 dated 22 May 1998, denying petitioner's motion for reconsideration.

Petitioner Bank of America NT & SA (BANTSA) is an international banking and financing institution duly licensed to do business in the Philippines, organized and existing under and by virtue of the laws of the State of California, United States of America while private respondent American Realty Corporation (ARC) is a domestic corporation.

Bank of America International Limited (BAIL), on the other hand, is a limited liability company organized and existing under the laws of England.

As borne by the records, BANTSA and BAIL on several occasions granted three major multi-million United States (US) Dollar loans to the following corporate borrowers: (1) Liberian Transport Navigation, S.A.; (2) El Challenger S.A. and (3) Eshley Compania Naviera S.A. (hereinafter collectively referred to as "borrowers"), all of which are existing under and by virtue of the laws of the Republic of Panama and are foreign affiliates of private
respondent.
3

Due to the default in the payment of the loan amortizations, BANTSA and the corporate borrowers signed and entered into restructuring agreements. As additional security for the restructured loans, private respondent ARC as third party mortgagor executed two real estate mortgages, 4 dated 17 February 1983 and 20 July 1984, over its parcels of land including improvements thereon, located at Barrio Sto. Cristo, San Jose Del Monte, Bulacan, and which are covered by Transfer Certificate of Title Nos. T-78759, T-78760, T-78761, T-78762 and T-78763.

Eventually, the corporate borrowers defaulted in the payment of the restructured loans prompting petitioner BANTSA to file civil actions 5 before foreign courts for the collection of the principal loan, to wit:

a) In England, in its High Court of Justice, Queen's Bench Division, Commercial Court (1992-Folio No 2098) against Liberian Transport Navigation S.A., Eshley Compania Naviera S.A., El Challenger S.A., Espriona Shipping Company S.A., Eddie Navigation Corp., S.A., Eduardo Katipunan Litonjua and Aurelio Katipunan Litonjua on June 17, 1992.

b) In England, in its High Court of Justice, Queen's Bench Division, Commercial Court (1992-Folio No. 2245) against El Challenger S.A., Espriona Shipping Company S.A., Eduardo Katipuan Litonjua & Aurelio Katipunan Litonjua on July 2, 1992;

c) In Hongkong, in the Supreme Court of Hongkong High Court (Action No. 4039 of 1992) against Eshley Compania Naviera S.A., El Challenger S.A., Espriona Shipping Company S.A. Pacific Navigators Corporation, Eddie Navigation Corporation S.A., Litonjua Chartering (Edyship) Co., Inc., Aurelio Katipunan Litonjua, Jr. and Eduardo Katipunan Litonjua on November 19, 1992; and

d) In Hongkong, in the Supreme Court of Hongkong High Court (Action No. 4040 of 1992) against Eshley Compania Naviera S.A., El Challenger S.A., Espriona Shipping Company, S.A., Pacific Navigators Corporation, Eddie Navigation Corporation S.A., Litonjua Chartering (Edyship) Co., Jr. and Eduardo Katipunan Litonjua on November 21, 1992.

In the civil suits instituted before the foreign courts, private respondent ARC, being a third party mortgagor, was private not impleaded as party-defendant.

On 16 December 1992, petitioner BANTSA filed before the Office of the Provincial Sheriff of Bulacan, Philippines an application for extrajudicial foreclosure 6 of real estate mortgage.

On 22 January 1993, after due publication and notice, the mortgaged real properties were sold at public auction in an extrajudicial foreclosure sale, with Integrated Credit and Corporation Services Co (ICCS) as the highest bidder for the sum of Twenty four Million Pesos (P24,000.000.00). 7

On 12 February 1993, private respondent filed before the Pasig Regional Trial Court, Branch 159, an action for damages 8 against the petitioner, for the latter's act of foreclosing extrajudicially the real estate mortgages despite the pendency of civil suits before foreign courts for the collection of the principal loan.

In its answer 9 petitioner alleged that the rule prohibiting the mortgagee from foreclosing the mortgage after an ordinary suit for collection has been filed, is not applicable in the present case, claiming that:

a) The plaintiff, being a mere third party mortgagor and not a party to the principal restructuring agreements, was never made a party defendant in the civil cases filed in Hongkong and England;

b) There is actually no civil suit for sum of money filed in the Philippines since the civil actions were filed in Hongkong and England. As such, any decisions (sic) which may be rendered in the abovementioned courts are not (sic) enforceable in the Philippines unless a separate action to enforce the foreign judgments is first filed in the Philippines, pursuant to Rule 39, Section 50 of the Revised Rules of Court.

c) Under English Law, which is the governing law under the principal agreements, the mortgagee does not lose its security interest by filing civil actions for sums of money.

On 14 December 1993, private respondent filed a motion for
suspension
10 of the redemption period on the ground that "it cannot exercise said right of redemption without at the same time waiving or contradicting its contentions in the case that the foreclosure of the mortgage on its properties is legally improper and therefore invalid."

In an order 11 dated 28 January 1994, the trial court granted the private respondent's motion for suspension after which a copy of said order was duly received by the Register of Deeds of Meycauayan, Bulacan.

On 07 February 1994, ICCS, the purchaser of the mortgaged properties at the foreclosure sale, consolidated its ownership over the real properties, resulting to the issuance of Transfer Certificate of Title Nos. T-18627, T-186272, T-186273, T-16471 and T-16472 in its name.

On 18 March 1994, after the consolidation of ownership in its favor, ICCS sold the real properties to Stateland Investment Corporation for the amount of Thirty Nine Million Pesos (P39,000,000.00). 12 Accordingly, Transfer Certificate of Title Nos. T-187781(m), T-187782(m), T-187783(m), T-16653P(m) and T-16652P(m) were issued in the latter's name.

After trial, the lower court rendered a decision 13 in favor of private respondent ARC dated 12 May 1993, the decretal portion of which reads:

WHEREFORE, judgment is hereby rendered declaring that the filing in foreign courts by the defendant of collection suits against the principal debtors operated as a waiver of the security of the mortgages. Consequently, the plaintiff's rights as owner and possessor of the properties then covered by Transfer Certificates of Title Nos. T-78759, T-78762, T-78763, T-78760 and T-78761, all of the Register of Deeds of Meycauayan, Bulacan, Philippines, were violated when the defendant caused the extrajudicial foreclosure of the mortgages constituted thereon.

Accordingly, the defendant is hereby ordered to pay the plaintiff the following sums, all with legal interest thereon from the date of the filing of the complaint up to the date of actual payment:

1) Actual or compensatory damages in the amount of Ninety Nine Million Pesos (P99,000,000.00);

2) Exemplary damages in the amount of Five Million Pesos (P5,000,000.00); and

3) Costs of suit.

SO ORDERED.

On appeal, the Court of Appeals affirmed the assailed decision of the lower court prompting petitioner to file a motion for reconsideration which the appellate court denied.

Hence, the instant petition for review 14 on certiorari where herein petitioner BANTSA ascribes to the Court of Appeals the following assignment of errors:

1. The Honorable Court of Appeals disregarded the doctrines laid down by this Hon. Supreme Court in the cases of Caltex Philippines, Inc. vs. Intermediate Appellate Court docketed as G.R. No. 74730 promulgated on August 25, 1989 and Philippine Commercial International Bank vs. IAC, 196 SCRA 29 (1991 case), although said cases were duly cited, extensively discussed and specifically mentioned, as one of the issues in the assignment of errors found on page 5 of the decision dated September 30, 1997.

2. The Hon. Court of Appeals acted with grave abuse of discretion when it awarded the private respondent actual and exemplary damages totalling P171,600,000.00, as of July 12, 1998 although such huge amount was not asked nor prayed for in private respondent's complaint, is contrary to law and is totally unsupported by evidence (sic).

In fine, this Court is called upon to resolve two main issues:

1. Whether or not the petitioner's act of filing a collection suit against the principal debtors for the recovery of the loan before foreign courts constituted a waiver of the remedy of foreclosure.

2. Whether or not the award by the lower court of actual and exemplary damages in favor of private respondent ARC, as third-party mortgagor, is proper.

The petition is bereft of merit.

First, as to the issue of availability of remedies, petitioner submits that a waiver of the remedy of foreclosure requires the concurrence of two requisites: an ordinary civil action for collection should be filed and subsequently a final judgment be correspondingly rendered therein.

According to petitioner, the mere filing of a personal action to collect the principal loan does not suffice; a final judgment must be secured and obtained in the personal action so that waiver of the remedy of foreclosure may be appreciated. To put it differently, absent any of the two requisites, the mortgagee-creditor is deemed not to have waived the remedy of foreclosure.

We do not agree.

Certainly, this Court finds petitioner's arguments untenable and upholds the jurisprudence laid down in Bachrach 15 and similar cases adjudicated thereafter, thus:

In the absence of express statutory provisions, a mortgage creditor may institute against the mortgage debtor either a personal action or debt or a real action to foreclose the mortgage. In other words, he may he may pursue either of the two remedies, but not both. By such election, his cause of action can by no means be impaired, for each of the two remedies is complete in itself. Thus, an election to bring a personal action will leave open to him all the properties of the debtor for attachment and execution, even including the mortgaged property itself. And, if he waives such personal action and pursues his remedy against the mortgaged property, an unsatisfied judgment thereon would still give him the right to sue for a deficiency judgment, in which case, all the properties of the defendant, other than the mortgaged property, are again open to him for the satisfaction of the deficiency. In either case, his remedy is complete, his cause of action undiminished, and any advantages attendant to the pursuit of one or the other remedy are purely accidental and are all under his right of election. On the other hand, a rule that would authorize the plaintiff to bring a personal action against the debtor and simultaneously or successively another action against the mortgaged property, would result not only in multiplicity of suits so offensive to justice (Soriano vs. Enriques, 24 Phil. 584) and obnoxious to law and equity (Osorio vs. San Agustin, 25 Phil., 404), but also in subjecting the defendant to the vexation of being sued in the place of his residence or of the residence of the plaintiff, and then again in the place where the property lies.

In Danao vs. Court of Appeals, 16 this Court, reiterating jurisprudence enunciated in Manila Trading and Supply Co vs. Co Kim 17 and Movido vs.
RFC
,
18 invariably held:

. . . The rule is now settled that a mortgage creditor may elect to waive his security and bring, instead, an ordinary action to recover the indebtedness with the right to execute a judgment thereon on all the properties of the debtor, including the subject matter of the mortgage . . . , subject to the qualification that if he fails in the remedy by him elected, he cannot pursue further the remedy he has waived. (Emphasis Ours)

Anent real properties in particular, the Court has laid down the rule that a mortgage creditor may institute against the mortgage debtor either a personal action for debt or a real action to foreclose the mortgage. 19

In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and not cumulative. Notably, an election of one remedy operates as a waiver of the other. For this purpose, a remedy is deemed chosen upon the filing of the suit for collection or upon the filing of the complaint in an action for foreclosure of mortgage, pursuant to the provision of Rule 68 of the of the 1997 Rules of Civil Procedure. As to extrajudicial foreclosure, such remedy is deemed elected by the mortgage creditor upon filing of the petition not with any court of justice but with the Office of the Sheriff of the province where the sale is to be made, in accordance with the provisions of Act No. 3135, as amended by Act No. 4118.

In the case at bench, private respondent ARC constituted real estate mortgages over its properties as security for the debt of the principal debtors. By doing so, private respondent subjected itself to the liabilities of a third party mortgagor. Under the law, third persons who are not parties to a loan may secure the latter by pledging or mortgaging their own property. 20

Notwithstanding, there is no legal provision nor jurisprudence in our jurisdiction which makes a third person who secures the fulfillment of another's obligation by mortgaging his own property, to be solidarily bound with the principal obligor. The signatory to the principal contract—loan—remains to be primarily bound. It is only upon default of the latter that the creditor may have recourse on the mortgagors by foreclosing the mortgaged properties in lieu of an action for the recovery of the amount of the loan. 21

In the instant case, petitioner's contention that the requisites of filing the action for collection and rendition of final judgment therein should concur, is untenable.

Thus, in Cerna vs. Court of Appeals, 22 we agreed with the petitioner in said case, that the filing of a collection suit barred the foreclosure of the mortgage:

A mortgagee who files a suit for collection abandons the remedy of foreclosure of the chattel mortgage constituted over the personal property as security for the debt or value of the promissory note when he seeks to recover in the said collection suit.

. . . When the mortgagee elects to file a suit for collection, not foreclosure, thereby abandoning the chattel mortgage as basis for relief, he clearly manifests his lack of desire and interest to go after the mortgaged property as security for the promissory note . . . .

Contrary to petitioner's arguments, we therefore reiterate the rule, for clarity and emphasis, that the mere act of filing of an ordinary action for collection operates as a waiver of the mortgage-creditor's remedy to foreclose the mortgage. By the mere filing of the ordinary action for collection against the principal debtors, the petitioner in the present case is deemed to have elected a remedy, as a result of which a waiver of the other necessarily must arise. Corollarily, no final judgment in the collection suit is required for the rule on waiver to apply.

Hence, in Caltex Philippines, Inc. vs. Intermediate-Appellate Court, 23 a case relied upon by petitioner, supposedly to buttress its contention, this Court had occasion to rule that the mere act of filing a collection suit for the recovery of a debt secured by a mortgage constitutes waiver of the other remedy of foreclosure.

In the case at bar, petitioner BANTSA only has one cause of action which is non-payment of the debt. Nevertheless, alternative remedies are available for its enjoyment and exercise. Petitioner then may opt to exercise only one of two remedies so as not to violate the rule against splitting a cause of action.

As elucidated by this Court in the landmark case of Bachrach Motor Co., Inc, vs. Icarangal. 24

For non-payment of a note secured by mortgage, the creditor has a single cause of action against the debtor. This single cause of action consists in the recovery of the credit with execution of the security. In other words, the creditor in his action may make two demands, the payment of the debt and the foreclosure of his mortgage. But both demands arise from the same cause, the non-payment of the debt, and for that reason, they constitute a single cause of action. Though the debt and the mortgage constitute separate agreements, the latter is subsidiary to the former, and both refer to one and the same obligation. Consequently, there exists only one cause of action for a single breach of that obligation. Plaintiff, then, by applying the rules above stated, cannot split up his single cause of action by filing a complaint for payment of the debt, and thereafter another complaint for foreclosure of the mortgage. If he does so, the filing of the first complaint will bar the subsequent complaint. By allowing the creditor to file two separate complaints simultaneously or successively, one to recover his credit and another to foreclose his mortgage, we will, in effect, be authorizing him plural redress for a single breach of contract at so much cost to the courts and with so much vexation and oppression to the debtor.

Petitioner further faults the Court of Appeals for allegedly disregarding the doctrine enunciated in Caltex wherein this High Court relaxed the application of the general rules to wit:

In the present case, however, we shall not follow this rule to the letter but declare that it is the collection suit which was waived and/or abandoned. This ruling is more in harmony with the principles underlying our judicial system. It is of no moment that the collection suit was filed ahead, what is determinative is the fact that the foreclosure proceedings ended even before the decision in the collection suit was rendered. . . .

Notably, though, petitioner took the Caltex ruling out of context. We must stress that the Caltex case was never intended to overrule the well-entrenched doctrine enunciated Bachrach, which to our mind still finds applicability in cases of this sort. To reiterate, Bachrach is still good law.

We then quote the decision 25 of the trial court, in the present case, thus:

The aforequoted ruling in Caltex is the exception rather than the rule, dictated by the peculiar circumstances obtaining therein. In the said case, the Supreme Court chastised Caltex for making ". . . a mockery of our judicial system when it initially filed a collection suit then, during the pendency thereof, foreclosed extrajudicially the mortgaged property which secured the indebtedness, and still pursued the collection suit to the end." Thus, to prevent a mockery of our judicial system", the collection suit had to be nullified because the foreclosure proceedings have already been pursued to their end and can no longer be undone.

xxx xxx xxx

In the case at bar, it has not been shown whether the defendant pursued to the end or are still pursuing the collection suits filed in foreign courts. There is no occasion, therefore, for this court to apply the exception laid down by the Supreme Court in Caltex by nullifying the collection suits. Quite obviously, too, the aforesaid collection suits are beyond the reach of this Court. Thus the only way the court may prevent the spector of a creditor having "plural redress for a single breach of contract" is by holding, as the Court hereby holds, that the defendant has waived the right to foreclose the mortgages constituted by the plaintiff on its properties originally covered by Transfer Certificates of Title Nos. T-78759, T-78762, T-78760 and T-78761. (RTC Decision pp., 10-11)

In this light, the actuations of Caltex are deserving of severe criticism, to say the least. 26

Moreover, petitioner attempts to mislead this Court by citing the case of PCIB vs. IAC. 27 Again, petitioner tried to fit a square peg in a round hole. It must be stressed that far from overturning the doctrine laid down in Bachrach, this Court in PCIB buttressed its firm stand on this issue by declaring:

While the law allows a mortgage creditor to either institute a personal action for the debt or a real action to foreclosure the mortgage, he cannot pursue both remedies simultaneously or successively as was done by PCIB in this case.

xxx xxx xxx

Thus, when the PCIB filed Civil Case No. 29392 to enforce payment of the 1.3 million promissory note secured by real estate mortgages and subsequently filed a petition for extrajudicial foreclosure, it violates the rule against splitting a cause of action.

Accordingly, applying the foregoing rules, we hold that petitioner, by the expediency of filing four civil suits before foreign courts, necessarily abandoned the remedy to foreclose the real estate mortgages constituted over the properties of third-party mortgagor and herein private respondent ARC. Moreover, by filing the four civil actions and by eventually foreclosing extrajudicially the mortgages, petitioner in effect transgressed the rules against splitting a cause of action well-enshrined in jurisprudence and our statute books.

In Bachrach, this Court resolved to deny the creditor the remedy of foreclosure after the collection suit was filed, considering that the creditor should not be afforded "plural redress for a single breach of contract." For cause of action should not be confused with the remedy created for its enforcement. 28

Notably, it is not the nature of the redress which is crucial but the efficacy of the remedy chosen in addressing the creditor's cause. Hence, a suit brought before a foreign court having competence and jurisdiction to entertain the action is deemed, for this purpose, to be within the contemplation of the remedy available to the mortgagee-creditor. This pronouncement would best serve the interest of justice and fair play and further discourage the noxious practice of splitting up a lone cause of action.

Incidentally, BANTSA alleges that under English Law, which according to petitioner is the governing law with regard to the principal agreements, the mortgagee does not lose its security interest by simply filing civil actions for sums of money. 29

We rule in the negative.

This argument shows desperation on the part of petitioner to rivet its crumbling cause. In the case at bench, Philippine law shall apply notwithstanding the evidence presented by petitioner to prove the English law on the matter.

In a long line of decisions, this Court adopted the well-imbedded principle in our jurisdiction that there is no judicial notice of any foreign law. A foreign law must be properly pleaded and proved as a fact. 30 Thus, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal
law.
31 This is what we refer to as the doctrine of processual presumption.

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs.
Sy-Gonzales
,
32 said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. 33

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. 34

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent —

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others.

Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws. 35

Clearly then, English Law is not applicable.

As to the second pivotal issue, we hold that the private respondent is entitled to the award of actual or compensatory damages inasmuch as the act of petitioner BANTSA in extrajudicially foreclosing the real estate mortgages constituted a clear violation of the rights of herein private respondent ARC, as third-party mortgagor.

Actual or compensatory damages are those recoverable because of pecuniary loss in business, trade, property, profession, job or occupation and the same must be proved, otherwise if the proof is flimsy and non-substantial, no damages will be given. 36 Indeed, the question of the value of property is always a difficult one to settle as valuation of real property is an imprecise process since real estate has no inherent value readily ascertainable by an appraiser or by the court. 37 The opinions of men vary so much concerning the real value of property that the best the courts can do is hear all of the witnesses which the respective parties desire to present, and then, by carefully weighing that testimony, arrive at a conclusion which is just and equitable. 38

In the instant case, petitioner assails the Court of Appeals for relying heavily on the valuation made by Philippine Appraisal Company. In effect, BANTSA questions the act of the appellate court in giving due weight to the appraisal report composed of twenty three pages, signed by Mr. Lauro Marquez and submitted as evidence by private respondent. The appraisal report, as the records would readily show, was corroborated by the testimony of Mr. Reynaldo Flores, witness for private respondent.

On this matter, the trial court observed:

The record herein reveals that plaintiff-appellee formally offered as evidence the appraisal report dated March 29, 1993 (Exhibit J, Records, p. 409), consisting of twenty three (23) pages which set out in detail the valuation of the property to determine its fair market value (TSN, April 22, 1994, p. 4), in the amount of P99,986,592.00 (TSN, ibid., p. 5), together with the corroborative testimony of one Mr. Reynaldo F. Flores, an appraiser and director of Philippine Appraisal Company, Inc. (TSN, ibid., p. 3). The latter's testimony was subjected to extensive cross-examination by counsel for defendant-appellant (TSN, April 22, 1994, pp. 6-22). 39

In the matter of credibility of witnesses, the Court reiterates the familiar and well-entrenched rule that the factual findings of the trial court should be respected. 40 The time-tested jurisprudence is that the findings and conclusions of the trial court on the credibility of witnesses enjoy a badge of respect for the reason that trial courts have the advantage of observing the demeanor of witnesses as they testify. 41

This Court will not alter the findings of the trial court on the credibility of witnesses, principally because they are in a better position to assess the same than the appellate court. 42 Besides, trial courts are in a better position to examine real evidence as well as observe the demeanor of witnesses. 43

Similarly, the appreciation of evidence and the assessment of the credibility of witnesses rest primarily with the trial court. 44 In the case at bar, we see no reason that would justify this Court to disturb the factual findings of the trial court, as affirmed by the Court of Appeals, with regard to the award of actual damages.

In arriving at the amount of actual damages, the trial court justified the award by presenting the following ratiocination in its assailed decision 45, to wit:

Indeed, the Court has its own mind in the matter of valuation. The size of the subject real properties are (sic) set forth in their individuals titles, and the Court itself has seen the character and nature of said properties during the ocular inspection it conducted. Based principally on the foregoing, the Court makes the following observations:

1. The properties consist of about 39 hectares in Bo. Sto. Cristo, San Jose del Monte, Bulacan, which is (sic) not distant from Metro Manila — the biggest urban center in the Philippines — and are easily accessible through well-paved roads;

2. The properties are suitable for development into a subdivision for low cost housing, as admitted by defendant's own appraiser (TSN, May 30, 1994, p. 31);

3. The pigpens which used to exist in the property have already been demolished. Houses of strong materials are found in the vicinity of the property (Exhs. 2, 2-1 to 2-7), and the vicinity is a growing community. It has even been shown that the house of the Barangay Chairman is located adjacent to the property in question (Exh. 27), and the only remaining piggery (named Cherry Farm) in the vicinity is about 2 kilometers away from the western boundary of the property in question (TSN, November 19, p. 3);

4. It will not be hard to find interested buyers of the property, as indubitably shown by the fact that on March 18, 1994, ICCS (the buyer during the foreclosure sale) sold the consolidated real estate properties to Stateland Investment Corporation, in whose favor new titles were issued, i.e., TCT Nos. T-187781(m); T-187782(m), T-187783(m); T-16653P(m) and T-166521(m) by the Register of Deeds of Meycauayan (sic), Bulacan;

5. The fact that ICCS was able to sell the subject properties to Stateland Investment Corporation for Thirty Nine Million (P39,000,000.00) Pesos, which is more than triple defendant's appraisal (Exh. 2) clearly shows that the Court cannot rely on defendant's aforesaid estimate (Decision, Records, p. 603).

It is a fundamental legal aphorism that the conclusions of the trial judge on the credibility of witnesses command great respect and consideration especially when the conclusions are supported by the evidence on record. 46 Applying the foregoing principle, we therefore hold that the trial court committed no palpable error in giving credence to the testimony of Reynaldo Flores, who according to the records, is a licensed real estate broker, appraiser and director of Philippine Appraisal Company, Inc. since 1990. 47 As the records show, Flores had been with the company for 26 years at the time of his testimony.

Of equal importance is the fact that the trial court did not confine itself to the appraisal report dated 29 March 1993, and the testimony given by Mr. Reynaldo Flores, in determining the fair market value of the real property. Above all these, the record would likewise show that the trial judge in order to appraise himself of the characteristics and condition of the property, conducted an ocular inspection where the opposing parties appeared and were duly represented.

Based on these considerations and the evidence submitted, we affirm the ruling of the trial court as regards the valuation of the property —

. . . a valuation of Ninety Nine Million Pesos (P99,000,000.00) for the 39-hectare properties (sic) translates to just about Two Hundred Fifty Four Pesos (P254.00) per square meter. This appears to be, as the court so holds, a better approximation of the fair market value of the subject properties. This is the amount which should be restituted by the defendant to the plaintiff by way of actual or compensatory damages . . . . 48

Further, petitioner ascribes error to the lower court awarding an amount allegedly not asked nor prayed for in private respondent's complaint.

Notwithstanding the fact that the award of actual and compensatory damages by the lower court exceeded that prayed for in the complaint, the same is nonetheless valid, subject to certain qualifications.

On this issue, Rule 10, Section 5 of the Rules of Court is pertinent:

Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgement; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.

The jurisprudence enunciated in Talisay-Silay Milling Co., Inc. vs. Asociacion de Agricultures de Talisay-Silay, Inc. 49 citing Northern Cement Corporation vs. Intermediate Appellate Court 50 is enlightening:

There have been instances where the Court has held that even without the necessary amendment, the amount proved at the trial may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106), where we said that if the facts shown entitled plaintiff to relief other than that asked for, no amendment to the complaint was necessary, especially where defendant had himself raised the point on which recovery was based. The appellate court could treat the pleading as amended to conform to the evidence although the pleadings were actually not amended. Amendment is also unnecessary when only clerical error or non substantial matters are involved, as we held in Bank of the Philippine Islands vs. Laguna (48 Phil. 5). In Co Tiamco vs. Diaz (75 Phil. 672), we stressed that the rule on amendment need not be applied rigidly, particularly where no surprise or prejudice is caused the objecting party. And in the recent case of National Power Corporation vs. Court of Appeals (113 SCRA 556), we held that where there is a variance in the defendant's pleadings and the evidence adduced by it at the trial, the Court may treat the pleading as amended to conform with the evidence.

It is the view of the Court that pursuant to the above-mentioned rule and in light of the decisions cited, the trial court should not be precluded from awarding an amount higher than that claimed in the pleading notwithstanding the absence of the required amendment. But it is upon the condition that the evidence of such higher amount has been presented properly, with full opportunity on the part of the opposing parties to support their respective contentions and to refute each other's evidence.

The failure of a party to amend a pleading to conform to the evidence adduced during trial does not preclude an adjudication by the court on the basis of such evidence which may embody new issues not raised in the pleadings, or serve as a basis for a higher award of damages. Although the pleading may not have been amended to conform to the evidence submitted during trial, judgment may nonetheless be rendered, not simply on the basis of the issues alleged but also the basis of issues discussed and the assertions of fact proved in the course of trial. The court may treat the pleading as if it had been amended to conform to the evidence, although it had not been actually so amended. Former Chief Justice Moran put the matter in this way:

When evidence is presented by one party, with the expressed or implied consent of the adverse party, as to issues not alleged in the pleadings, judgment may be rendered validly as regards those issues, which shall be considered as if they have been raised in the pleadings. There is implied consent to the evidence thus presented when the adverse party fails to object thereto.

Clearly, a court may rule and render judgment on the basis of the evidence before it even though the relevant pleading had not been previously amended, so long as no surprise or prejudice is thereby caused to the adverse party. Put a little differently, so long as the basis requirements of fair play had been met, as where litigants were given full opportunity to support their respective contentions and to object to or refute each other's evidence, the court may validly treat the pleadings as if they had been amended to conform to the evidence and proceed to adjudicate on the basis of all the evidence before it.

In the instant case, inasmuch as the petitioner was afforded the opportunity to refute and object to the evidence, both documentary and testimonial, formally offered by private respondent, the rudiments of fair play are deemed satisfied. In fact, the testimony of Reynaldo Flores was put under scrutiny during the course of the cross-examination. Under these circumstances, the court acted within the bounds of its jurisdiction and committed no reversible error in awarding actual damages the amount of which is higher than that prayed for. Verily, the lower court's actuations are sanctioned by the Rules and supported by jurisprudence.

Similarly, we affirm the grant of exemplary damages although the amount of Five Million Pesos (P5,000,000.00) awarded, being excessive, is subject to reduction. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. 51 Considering its purpose, it must be fair and reasonable in every case and should not be awarded to unjustly enrich a prevailing party. 52 In our view, an award of P50,000.00 as exemplary damages in the present case qualifies the test of reasonableness.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The decision of the Court of Appeals is hereby AFFIRMED with MODIFICATION of the amount awarded as exemplary damages. According, petitioner is hereby ordered to pay private respondent the sum of P99,000,000.00 as actual or compensatory damages; P50,000.00 as exemplary damage and the costs of suit.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

Footnotes

1 CA Decision in CA-G.R. CV No. 51094, penned by Justice Ricardo P. Galvez and concurred in by Justice Fidel V. Purisima and Justice B.A. Adefuin-De la Cruz; Rollo, pp. 38-58.

2 CA Resolution in CA G.R. CV No. 51094, dated 22 May 1998; Rollo, p. 60.

3 Rollo, p. 38.

4 Ibid., p. 39.

5 Ibid.

6 Ibid., p. 40.

7 Ibid.

8 Ibid.

9 Ibid.

10 Rollo, p. 41.

11 Ibid.

12 Ibid.

13 Rollo, pp. 41-42.

14 Rollo, pp. 10-36.

15 Bachrach Motor Co., Inc., vs. Esteban Icarangal, 68 Phil. 287.

16 154 SCRA 446.

17 71 Phil. 448.

18 105 Phil. 886.

19 Danao vs. Court of Appeals 154 SCRA 446.

20 Article 2085, Civil Code; Lustan vs. Court of Appeals, 266 SCRA 663.

21 Cerna vs. Court of Appeals 220 SCRA 517.

22 Ibid.

23 176 SCRA 741.

24 68 Phil. 287.

25 Rollo, p. 94.

26 Caltex Philippines, Inc. vs. Intermediate Appellate Court, 176 SCRA 741.

27 196 SCRA 29.

28 Bachrach Motor vs. Icarangal, 68 Phil. 287.

29 Rollo, p. 16.7.

30 Adong vs. Cheong Seng Gee, 43 Phil. 43; Sy Joc Lieng vs. Syquia, 16 Phil. 137.

31 Lim vs. Collector, 36 Phil. 472.

32 167 SCRA 736.

33 Philippine Conflict of Laws, Eighth Edition, 1996, Paras, page 46.

34 Article 17, par. 3, Civil Code.

35 Philippine Conflict of Laws, Eight Edition, 1996, Paras, p. 60.

36 Perfecto vs. Gonzales, 128 SCRA 640, as cited in Danao vs. Court of Appeals, 154 SCRA 447.

37 22 Am. Jur. 2d 193.

38 City of Manila vs. Corrales, 32 Phil. 85, 96.

39 Rollo, p. 103.

40 People vs. Morales, 241 SCRA 267.

41 People vs. Gamiao, 240 SCRA 254.

42 People vs. Cascalla, 240 SCRA 482.

43 Lee Eng Hong vs. Court of Appeals, 241 SCRA 392.

44 Ibid.

45 Rollo, pp. 46-47.

46 People vs. Asoy, 251 SCRA 682.

47 TSN, April 22, 1994, p. 6.

48 Decision, Records, ibid.

49 247 SCRA 361, 377-378.

50 158 SCRA 408.

51 Article 2229, Civil Code.

52 Philtranco Service Exporters, Inc. vs. Court of Appeals, 273 SCRA 562.

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 140047 July 13, 2004

PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION, petitioner,
vs.
V.P. EUSEBIO CONSTRUCTION, INC.; 3-PLEX INTERNATIONAL, INC.; VICENTE P. EUSEBIO; SOLEDAD C. EUSEBIO; EDUARDO E. SANTOS; ILUMINADA SANTOS; AND FIRST INTEGRATED BONDING AND INSURANCE COMPANY, INC., respondents.


D E C I S I O N


DAVIDE, JR., C.J.:

This case is an offshoot of a service contract entered into by a Filipino construction firm with the Iraqi Government for the construction of the Institute of Physical Therapy-Medical Center, Phase II, in Baghdad, Iraq, at a time when the Iran-Iraq war was ongoing.

In a complaint filed with the Regional Trial Court of Makati City, docketed as Civil Case No. 91-1906 and assigned to Branch 58, petitioner Philippine Export and Foreign Loan Guarantee Corporation1 (hereinafter Philguarantee) sought reimbursement from the respondents of the sum of money it paid to Al Ahli Bank of Kuwait pursuant to a guarantee it issued for respondent V.P. Eusebio Construction, Inc. (VPECI).

The factual and procedural antecedents in this case are as follows:

On 8 November 1980, the State Organization of Buildings (SOB), Ministry of Housing and Construction, Baghdad, Iraq, awarded the construction of the Institute of Physical Therapy–Medical Rehabilitation Center, Phase II, in Baghdad, Iraq, (hereinafter the Project) to Ajyal Trading and Contracting Company (hereinafter Ajyal), a firm duly licensed with the Kuwait Chamber of Commerce for a total contract price of ID5,416,089/046 (or about US$18,739,668).2

On 7 March 1981, respondent spouses Eduardo and Iluminada Santos, in behalf of respondent 3-Plex International, Inc. (hereinafter 3-Plex), a local contractor engaged in construction business, entered into a joint venture agreement with Ajyal wherein the former undertook the execution of the entire Project, while the latter would be entitled to a commission of 4% of the contract price.3 Later, or on 8 April 1981, respondent 3-Plex, not being accredited by or registered with the Philippine Overseas Construction Board (POCB), assigned and transferred all its rights and interests under the joint venture agreement to VPECI, a construction and engineering firm duly registered with the POCB.4 However, on 2 May 1981, 3-Plex and VPECI entered into an agreement that the execution of the Project would be under their joint management.5

The SOB required the contractors to submit (1) a performance bond of ID271,808/610 representing 5% of the total contract price and (2) an advance payment bond of ID541,608/901 representing 10% of the advance payment to be released upon signing of the contract.6 To comply with these requirements, respondents 3-Plex and VPECI applied for the issuance of a guarantee with petitioner Philguarantee, a government financial institution empowered to issue guarantees for qualified Filipino contractors to secure the performance of approved service contracts abroad.7

Petitioner Philguarantee approved respondents' application. Subsequently, letters of guarantee8 were issued by Philguarantee to the Rafidain Bank of Baghdad covering 100% of the performance and advance payment bonds, but they were not accepted by SOB. What SOB required was a letter-guarantee from Rafidain Bank, the government bank of Iraq. Rafidain Bank then issued a performance bond in favor of SOB on the condition that another foreign bank, not Philguarantee, would issue a counter-guarantee to cover its exposure. Al Ahli Bank of Kuwait was, therefore, engaged to provide a counter-guarantee to Rafidain Bank, but it required a similar counter-guarantee in its favor from the petitioner. Thus, three layers of guarantees had to be arranged.9

Upon the application of respondents 3-Plex and VPECI, petitioner Philguarantee issued in favor of Al Ahli Bank of Kuwait Letter of Guarantee No. 81-194-F 10 (Performance Bond Guarantee) in the amount of ID271,808/610 and Letter of Guarantee No. 81-195-F11 (Advance Payment Guarantee) in the amount of ID541,608/901, both for a term of eighteen months from 25 May 1981. These letters of guarantee were secured by (1) a Deed of Undertaking12 executed by respondents VPECI, Spouses Vicente P. Eusebio and Soledad C. Eusebio, 3-Plex, and Spouses Eduardo E. Santos and Iluminada Santos; and (2) a surety bond13 issued by respondent First Integrated Bonding and Insurance Company, Inc. (FIBICI). The Surety Bond was later amended on 23 June 1981 to increase the amount of coverage from P6.4 million to P6.967 million and to change the bank in whose favor the petitioner's guarantee was issued, from Rafidain Bank to Al Ahli Bank of Kuwait.14

On 11 June 1981, SOB and the joint venture VPECI and Ajyal executed the service contract15 for the construction of the Institute of Physical Therapy – Medical Rehabilitation Center, Phase II, in Baghdad, Iraq, wherein the joint venture contractor undertook to complete the Project within a period of 547 days or 18 months. Under the Contract, the Joint Venture would supply manpower and materials, and SOB would refund to the former 25% of the project cost in Iraqi Dinar and the 75% in US dollars at the exchange rate of 1 Dinar to 3.37777 US Dollars.16

The construction, which was supposed to start on 2 June 1981, commenced only on the last week of August 1981. Because of this delay and the slow progress of the construction work due to some setbacks and difficulties, the Project was not completed on 15 November 1982 as scheduled. But in October 1982, upon foreseeing the impossibility of meeting the deadline and upon the request of Al Ahli Bank, the joint venture contractor worked for the renewal or extension of the Performance Bond and Advance Payment Guarantee. Petitioner's Letters of Guarantee Nos. 81-194-F (Performance Bond) and 81-195-F (Advance Payment Bond) with expiry date of 25 November 1982 were then renewed or extended to 9 February 1983 and 9 March 1983, respectively.17 The surety bond was also extended for another period of one year, from 12 May 1982 to 12 May 1983.18 The Performance Bond was further extended twelve times with validity of up to 8 December 1986,19 while the Advance Payment Guarantee was extended three times more up to 24 May 1984 when the latter was cancelled after full refund or reimbursement by the joint venture contractor.20 The surety bond was likewise extended to 8 May 1987.21

As of March 1986, the status of the Project was 51% accomplished, meaning the structures were already finished. The remaining 47% consisted in electro-mechanical works and the 2%, sanitary works, which both required importation of equipment and materials.22

On 26 October 1986, Al Ahli Bank of Kuwait sent a telex call to the petitioner demanding full payment of its performance bond counter-guarantee.

Upon receiving a copy of that telex message on 27 October 1986, respondent VPECI requested Iraq Trade and Economic Development Minister Mohammad Fadhi Hussein to recall the telex call on the performance guarantee for being a drastic action in contravention of its mutual agreement with the latter that (1) the imposition of penalty would be held in abeyance until the completion of the project; and (2) the time extension would be open, depending on the developments on the negotiations for a foreign loan to finance the completion of the project.23 It also wrote SOB protesting the call for lack of factual or legal basis, since the failure to complete the Project was due to (1) the Iraqi government's lack of foreign exchange with which to pay its (VPECI's) accomplishments and (2) SOB's noncompliance for the past several years with the provision in the contract that 75% of the billings would be paid in US dollars.24 Subsequently, or on 19 November 1986, respondent VPECI advised the petitioner not to pay yet Al Ahli Bank because efforts were being exerted for the amicable settlement of the Project.25

On 14 April 1987, the petitioner received another telex message from Al Ahli Bank stating that it had already paid to Rafidain Bank the sum of US$876,564 under its letter of guarantee, and demanding reimbursement by the petitioner of what it paid to the latter bank plus interest thereon and related expenses.26

Both petitioner Philguarantee and respondent VPECI sought the assistance of some government agencies of the Philippines. On 10 August 1987, VPECI requested the Central Bank to hold in abeyance the payment by the petitioner "to allow the diplomatic machinery to take its course, for otherwise, the Philippine government , through the Philguarantee and the Central Bank, would become instruments of the Iraqi Government in consummating a clear act of injustice and inequity committed against a Filipino contractor."27

On 27 August 1987, the Central Bank authorized the remittance for its account of the amount of US$876,564 (equivalent to ID271, 808/610) to Al Ahli Bank representing full payment of the performance counter-guarantee for VPECI's project in Iraq. 28

On 6 November 1987, Philguarantee informed VPECI that it would remit US$876,564 to Al Ahli Bank, and reiterated the joint and solidary obligation of the respondents to reimburse the petitioner for the advances made on its counter-guarantee.29

The petitioner thus paid the amount of US$876,564 to Al Ahli Bank of Kuwait on 21 January 1988.30 Then, on 6 May 1988, the petitioner paid to Al Ahli Bank of Kuwait US$59,129.83 representing interest and penalty charges demanded by the latter bank.31

On 19 June 1991, the petitioner sent to the respondents separate letters demanding full payment of the amount of P47,872,373.98 plus accruing interest, penalty charges, and 10% attorney's fees pursuant to their joint and solidary obligations under the deed of undertaking and surety bond.32 When the respondents failed to pay, the petitioner filed on 9 July 1991 a civil case for collection of a sum of money against the respondents before the RTC of Makati City.

After due trial, the trial court ruled against Philguarantee and held that the latter had no valid cause of action against the respondents. It opined that at the time the call was made on the guarantee which was executed for a specific period, the guarantee had already lapsed or expired. There was no valid renewal or extension of the guarantee for failure of the petitioner to secure respondents' express consent thereto. The trial court also found that the joint venture contractor incurred no delay in the execution of the Project. Considering the Project owner's violations of the contract which rendered impossible the joint venture contractor's performance of its undertaking, no valid call on the guarantee could be made. Furthermore, the trial court held that no valid notice was first made by the Project owner SOB to the joint venture contractor before the call on the guarantee. Accordingly, it dismissed the complaint, as well as the counterclaims and cross-claim, and ordered the petitioner to pay attorney's fees of P100,000 to respondents VPECI and Eusebio Spouses and P100,000 to 3-Plex and the Santos Spouses, plus costs. 33

In its 14 June 1999 Decision,34 the Court of Appeals affirmed the trial court's decision, ratiocinating as follows:

First, appellant cannot deny the fact that it was fully aware of the status of project implementation as well as the problems besetting the contractors, between 1982 to 1985, having sent some of its people to Baghdad during that period. The successive renewals/extensions of the guarantees in fact, was prompted by delays, not solely attributable to the contractors, and such extension understandably allowed by the SOB (project owner) which had not anyway complied with its contractual commitment to tender 75% of payment in US Dollars, and which still retained overdue amounts collectible by VPECI.

Second, appellant was very much aware of the violations committed by the SOB of its contractual undertakings with VPECI, principally, the payment of foreign currency (US$) for 75% of the total contract price, as well as of the complications and injustice that will result from its payment of the full amount of the performance guarantee, as evident in PHILGUARANTEE's letter dated 13 May 1987 ….

Third, appellant was fully aware that SOB was in fact still obligated to the Joint Venture and there was still an amount collectible from and still being retained by the project owner, which amount can be set-off with the sum covered by the performance guarantee.

Fourth, well-apprised of the above conditions obtaining at the Project site and cognizant of the war situation at the time in Iraq, appellant, though earlier has made representations with the SOB regarding a possible amicable termination of the Project as suggested by VPECI, made a complete turn-around and insisted on acting in favor of the unjustified "call" by the foreign banks.35

The petitioner then came to this Court via Rule 45 of the Rules of Court claiming that the Court of Appeals erred in affirming the trial court's ruling that

I

…RESPONDENTS ARE NOT LIABLE UNDER THE DEED OF UNDERTAKING THEY EXECUTED IN FAVOR OF PETITIONER IN CONSIDERATION FOR THE ISSUANCE OF ITS COUNTER-GUARANTEE AND THAT PETITIONER CANNOT PASS ON TO RESPONDENTS WHAT IT HAD PAID UNDER THE SAID COUNTER-GUARANTEE.

II

…PETITIONER CANNOT CLAIM SUBROGATION.

III

…IT IS INIQUITOUS AND UNJUST FOR PETITIONER TO HOLD RESPONDENTS LIABLE UNDER THEIR DEED OF UNDERTAKING.36

The main issue in this case is whether the petitioner is entitled to reimbursement of what it paid under Letter of Guarantee No. 81-194-F it issued to Al Ahli Bank of Kuwait based on the deed of undertaking and surety bond from the respondents.

The petitioner asserts that since the guarantee it issued was absolute, unconditional, and irrevocable the nature and extent of its liability are analogous to those of suretyship. Its liability accrued upon the failure of the respondents to finish the construction of the Institute of Physical Therapy Buildings in Baghdad.

By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so. If a person binds himself solidarily with the principal debtor, the contract is called suretyship. 37

Strictly speaking, guaranty and surety are nearly related, and many of the principles are common to both. In both contracts, there is a promise to answer for the debt or default of another. However, in this jurisdiction, they may be distinguished thus:

1. A surety is usually bound with his principal by the same instrument executed at the same time and on the same consideration. On the other hand, the contract of guaranty is the guarantor's own separate undertaking often supported by a consideration separate from that supporting the contract of the principal; the original contract of his principal is not his contract.

2. A surety assumes liability as a regular party to the undertaking; while the liability of a guarantor is conditional depending on the failure of the primary debtor to pay the obligation.

3. The obligation of a surety is primary, while that of a guarantor is secondary.

4. A surety is an original promissor and debtor from the beginning, while a guarantor is charged on his own undertaking.

5. A surety is, ordinarily, held to know every default of his principal; whereas a guarantor is not bound to take notice of the non-performance of his principal.

6. Usually, a surety will not be discharged either by the mere indulgence of the creditor to the principal or by want of notice of the default of the principal, no matter how much he may be injured thereby. A guarantor is often discharged by the mere indulgence of the creditor to the principal, and is usually not liable unless notified of the default of the principal. 38

In determining petitioner's status, it is necessary to read Letter of Guarantee No. 81-194-F, which provides in part as follows:

In consideration of your issuing the above performance guarantee/counter-guarantee, we hereby unconditionally and irrevocably guarantee, under our Ref. No. LG-81-194 F to pay you on your first written or telex demand Iraq Dinars Two Hundred Seventy One Thousand Eight Hundred Eight and fils six hundred ten (ID271,808/610) representing 100% of the performance bond required of V.P. EUSEBIO for the construction of the Physical Therapy Institute, Phase II, Baghdad, Iraq, plus interest and other incidental expenses related thereto.

In the event of default by V.P. EUSEBIO, we shall pay you 100% of the obligation unpaid but in no case shall such amount exceed Iraq Dinars (ID) 271,808/610 plus interest and other incidental expenses…. (Emphasis supplied)39

Guided by the abovementioned distinctions between a surety and a guaranty, as well as the factual milieu of this case, we find that the Court of Appeals and the trial court were correct in ruling that the petitioner is a guarantor and not a surety. That the guarantee issued by the petitioner is unconditional and irrevocable does not make the petitioner a surety. As a guaranty, it is still characterized by its subsidiary and conditional quality because it does not take effect until the fulfillment of the condition, namely, that the principal obligor should fail in his obligation at the time and in the form he bound himself.40 In other words, an unconditional guarantee is still subject to the condition that the principal debtor should default in his obligation first before resort to the guarantor could be had. A conditional guaranty, as opposed to an unconditional guaranty, is one which depends upon some extraneous event, beyond the mere default of the principal, and generally upon notice of the principal's default and reasonable diligence in exhausting proper remedies against the principal.41

It appearing that Letter of Guarantee No. 81-194-F merely stated that in the event of default by respondent VPECI the petitioner shall pay, the obligation assumed by the petitioner was simply that of an unconditional guaranty, not conditional guaranty. But as earlier ruled the fact that petitioner's guaranty is unconditional does not make it a surety. Besides, surety is never presumed. A party should not be considered a surety where the contract itself stipulates that he is acting only as a guarantor. It is only when the guarantor binds himself solidarily with the principal debtor that the contract becomes one of suretyship.42

Having determined petitioner's liability as guarantor, the next question we have to grapple with is whether the respondent contractor has defaulted in its obligations that would justify resort to the guaranty. This is a mixed question of fact and law that is better addressed by the lower courts, since this Court is not a trier of facts.

It is a fundamental and settled rule that the findings of fact of the trial court and the Court of Appeals are binding or conclusive upon this Court unless they are not supported by the evidence or unless strong and cogent reasons dictate otherwise.43 The factual findings of the Court of Appeals are normally not reviewable by us under Rule 45 of the Rules of Court except when they are at variance with those of the trial court. 44 The trial court and the Court of Appeals were in unison that the respondent contractor cannot be considered to have defaulted in its obligations because the cause of the delay was not primarily attributable to it.

A corollary issue is what law should be applied in determining whether the respondent contractor has defaulted in the performance of its obligations under the service contract. The question of whether there is a breach of an agreement, which includes default or mora,45 pertains to the essential or intrinsic validity of a contract. 46

No conflicts rule on essential validity of contracts is expressly provided for in our laws. The rule followed by most legal systems, however, is that the intrinsic validity of a contract must be governed by the lex contractus or "proper law of the contract." This is the law voluntarily agreed upon by the parties (the lex loci voluntatis) or the law intended by them either expressly or implicitly (the lex loci intentionis). The law selected may be implied from such factors as substantial connection with the transaction, or the nationality or domicile of the parties.47 Philippine courts would do well to adopt the first and most basic rule in most legal systems, namely, to allow the parties to select the law applicable to their contract, subject to the limitation that it is not against the law, morals, or public policy of the forum and that the chosen law must bear a substantive relationship to the transaction. 48

It must be noted that the service contract between SOB and VPECI contains no express choice of the law that would govern it. In the United States and Europe, the two rules that now seem to have emerged as "kings of the hill" are (1) the parties may choose the governing law; and (2) in the absence of such a choice, the applicable law is that of the State that "has the most significant relationship to the transaction and the parties."49 Another authority proposed that all matters relating to the time, place, and manner of performance and valid excuses for non-performance are determined by the law of the place of performance or lex loci solutionis, which is useful because it is undoubtedly always connected to the contract in a significant way.50

In this case, the laws of Iraq bear substantial connection to the transaction, since one of the parties is the Iraqi Government and the place of performance is in Iraq. Hence, the issue of whether respondent VPECI defaulted in its obligations may be determined by the laws of Iraq. However, since that foreign law was not properly pleaded or proved, the presumption of identity or similarity, otherwise known as the processual presumption, comes into play. Where foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours.51

Our law, specifically Article 1169, last paragraph, of the Civil Code, provides: "In reciprocal obligations, neither party incurs in delay if the other party does not comply or is not ready to comply in a proper manner with what is incumbent upon him."

Default or mora on the part of the debtor is the delay in the fulfillment of the prestation by reason of a cause imputable to the former. 52 It is the non-fulfillment of an obligation with respect to time.53

It is undisputed that only 51.7% of the total work had been accomplished. The 48.3% unfinished portion consisted in the purchase and installation of electro-mechanical equipment and materials, which were available from foreign suppliers, thus requiring US Dollars for their importation. The monthly billings and payments made by SOB54 reveal that the agreement between the parties was a periodic payment by the Project owner to the contractor depending on the percentage of accomplishment within the period. 55 The payments were, in turn, to be used by the contractor to finance the subsequent phase of the work. 56 However, as explained by VPECI in its letter to the Department of Foreign Affairs (DFA), the payment by SOB purely in Dinars adversely affected the completion of the project; thus:

4. Despite protests from the plaintiff, SOB continued paying the accomplishment billings of the Contractor purely in Iraqi Dinars and which payment came only after some delays.

5. SOB is fully aware of the following:

5.2 That Plaintiff is a foreign contractor in Iraq and as such, would need foreign currency (US$), to finance the purchase of various equipment, materials, supplies, tools and to pay for the cost of project management, supervision and skilled labor not available in Iraq and therefore have to be imported and or obtained from the Philippines and other sources outside Iraq.

5.3 That the Ministry of Labor and Employment of the Philippines requires the remittance into the Philippines of 70% of the salaries of Filipino workers working abroad in US Dollars;

5.5 That the Iraqi Dinar is not a freely convertible currency such that the same cannot be used to purchase equipment, materials, supplies, etc. outside of Iraq;

5.6 That most of the materials specified by SOB in the CONTRACT are not available in Iraq and therefore have to be imported;

5.7 That the government of Iraq prohibits the bringing of local currency (Iraqui Dinars) out of Iraq and hence, imported materials, equipment, etc., cannot be purchased or obtained using Iraqui Dinars as medium of acquisition.

8. Following the approved construction program of the CONTRACT, upon completion of the civil works portion of the installation of equipment for the building, should immediately follow, however, the CONTRACT specified that these equipment which are to be installed and to form part of the PROJECT have to be procured outside Iraq since these are not being locally manufactured. Copy f the relevant portion of the Technical Specification is hereto attached as Annex "C" and made an integral part hereof;

10. Due to the lack of Foreign currency in Iraq for this purpose, and if only to assist the Iraqi government in completing the PROJECT, the Contractor without any obligation on its part to do so but with the knowledge and consent of SOB and the Ministry of Housing & Construction of Iraq, offered to arrange on behalf of SOB, a foreign currency loan, through the facilities of Circle International S.A., the Contractor's Sub-contractor and SACE MEDIO CREDITO which will act as the guarantor for this foreign currency loan.

Arrangements were first made with Banco di Roma. Negotiation started in June 1985. SOB is informed of the developments of this negotiation, attached is a copy of the draft of the loan Agreement between SOB as the Borrower and Agent. The Several Banks, as Lender, and counter-guaranteed by Istituto Centrale Per II Credito A Medio Termine (Mediocredito) Sezione Speciale Per L'Assicurazione Del Credito All'Exportazione (Sace). Negotiations went on and continued until it suddenly collapsed due to the reported default by Iraq in the payment of its obligations with Italian government, copy of the news clipping dated June 18, 1986 is hereto attached as Annex "D" to form an integral part hereof;

15. On September 15, 1986, Contractor received information from Circle International S.A. that because of the news report that Iraq defaulted in its obligations with European banks, the approval by Banco di Roma of the loan to SOB shall be deferred indefinitely, a copy of the letter of Circle International together with the news clippings are hereto attached as Annexes "F" and "F-1", respectively.57

As found by both the Court of Appeals and the trial court, the delay or the non-completion of the Project was caused by factors not imputable to the respondent contractor. It was rather due mainly to the persistent violations by SOB of the terms and conditions of the contract, particularly its failure to pay 75% of the accomplished work in US Dollars. Indeed, where one of the parties to a contract does not perform in a proper manner the prestation which he is bound to perform under the contract, he is not entitled to demand the performance of the other party. A party does not incur in delay if the other party fails to perform the obligation incumbent upon him.

The petitioner, however, maintains that the payments by SOB of the monthly billings in purely Iraqi Dinars did not render impossible the performance of the Project by VPECI. Such posture is quite contrary to its previous representations. In his 26 March 1987 letter to the Office of the Middle Eastern and African Affairs (OMEAA), DFA, Manila, petitioner's Executive Vice-President Jesus M. Tañedo stated that while VPECI had taken every possible measure to complete the Project, the war situation in Iraq, particularly the lack of foreign exchange, was proving to be a great obstacle; thus:

VPECI has taken every possible measure for the completion of the project but the war situation in Iraq particularly the lack of foreign exchange is proving to be a great obstacle. Our performance counterguarantee was called last 26 October 1986 when the negotiations for a foreign currency loan with the Italian government through Banco de Roma bogged down following news report that Iraq has defaulted in its obligation with major European banks. Unless the situation in Iraq is improved as to allay the bank's apprehension, there is no assurance that the project will ever be completed. 58

In order that the debtor may be in default it is necessary that the following requisites be present: (1) that the obligation be demandable and already liquidated; (2) that the debtor delays performance; and (3) that the creditor requires the performance because it must appear that the tolerance or benevolence of the creditor must have ended. 59

As stated earlier, SOB cannot yet demand complete performance from VPECI because it has not yet itself performed its obligation in a proper manner, particularly the payment of the 75% of the cost of the Project in US Dollars. The VPECI cannot yet be said to have incurred in delay. Even assuming that there was delay and that the delay was attributable to VPECI, still the effects of that delay ceased upon the renunciation by the creditor, SOB, which could be implied when the latter granted several extensions of time to the former. 60 Besides, no demand has yet been made by SOB against the respondent contractor. Demand is generally necessary even if a period has been fixed in the obligation. And default generally begins from the moment the creditor demands judicially or extra-judicially the performance of the obligation. Without such demand, the effects of default will not arise.61

Moreover, the petitioner as a guarantor is entitled to the benefit of excussion, that is, it cannot be compelled to pay the creditor SOB unless the property of the debtor VPECI has been exhausted and all legal remedies against the said debtor have been resorted to by the creditor.62 It could also set up compensation as regards what the creditor SOB may owe the principal debtor VPECI.63 In this case, however, the petitioner has clearly waived these rights and remedies by making the payment of an obligation that was yet to be shown to be rightfully due the creditor and demandable of the principal debtor.

As found by the Court of Appeals, the petitioner fully knew that the joint venture contractor had collectibles from SOB which could be set off with the amount covered by the performance guarantee. In February 1987, the OMEAA transmitted to the petitioner a copy of a telex dated 10 February 1987 of the Philippine Ambassador in Baghdad, Iraq, informing it of the note verbale sent by the Iraqi Ministry of Foreign Affairs stating that the past due obligations of the joint venture contractor from the petitioner would "be deducted from the dues of the two contractors."64

Also, in the project situationer attached to the letter to the OMEAA dated 26 March 1987, the petitioner raised as among the arguments to be presented in support of the cancellation of the counter-guarantee the fact that the amount of ID281,414/066 retained by SOB from the Project was more than enough to cover the counter-guarantee of ID271,808/610; thus:

6.1 Present the following arguments in cancelling the counterguarantee:

· The Iraqi Government does not have the foreign exchange to fulfill its contractual obligations of paying 75% of progress billings in US dollars.

· It could also be argued that the amount of ID281,414/066 retained by SOB from the proposed project is more than the amount of the outstanding counterguarantee.65

In a nutshell, since the petitioner was aware of the contractor's outstanding receivables from SOB, it should have set up compensation as was proposed in its project situationer.

Moreover, the petitioner was very much aware of the predicament of the respondents. In fact, in its 13 May 1987 letter to the OMEAA, DFA, Manila, it stated:

VPECI also maintains that the delay in the completion of the project was mainly due to SOB's violation of contract terms and as such, call on the guarantee has no basis.

While PHILGUARANTEE is prepared to honor its commitment under the guarantee, PHILGUARANTEE does not want to be an instrument in any case of inequity committed against a Filipino contractor. It is for this reason that we are constrained to seek your assistance not only in ascertaining the veracity of Al Ahli Bank's claim that it has paid Rafidain Bank but possibly averting such an event. As any payment effected by the banks will complicate matters, we cannot help underscore the urgency of VPECI's bid for government intervention for the amicable termination of the contract and release of the performance guarantee. 66

But surprisingly, though fully cognizant of SOB's violations of the service contract and VPECI's outstanding receivables from SOB, as well as the situation obtaining in the Project site compounded by the Iran-Iraq war, the petitioner opted to pay the second layer guarantor not only the full amount of the performance bond counter-guarantee but also interests and penalty charges.

This brings us to the next question: May the petitioner as a guarantor secure reimbursement from the respondents for what it has paid under Letter of Guarantee No. 81-194-F?

As a rule, a guarantor who pays for a debtor should be indemnified by the latter67 and would be legally subrogated to the rights which the creditor has against the debtor.68 However, a person who makes payment without the knowledge or against the will of the debtor has the right to recover only insofar as the payment has been beneficial to the debtor.69 If the obligation was subject to defenses on the part of the debtor, the same defenses which could have been set up against the creditor can be set up against the paying guarantor.70

From the findings of the Court of Appeals and the trial court, it is clear that the payment made by the petitioner guarantor did not in any way benefit the principal debtor, given the project status and the conditions obtaining at the Project site at that time. Moreover, the respondent contractor was found to have valid defenses against SOB, which are fully supported by evidence and which have been meritoriously set up against the paying guarantor, the petitioner in this case. And even if the deed of undertaking and the surety bond secured petitioner's guaranty, the petitioner is precluded from enforcing the same by reason of the petitioner's undue payment on the guaranty. Rights under the deed of undertaking and the surety bond do not arise because these contracts depend on the validity of the enforcement of the guaranty.

The petitioner guarantor should have waited for the natural course of guaranty: the debtor VPECI should have, in the first place, defaulted in its obligation and that the creditor SOB should have first made a demand from the principal debtor. It is only when the debtor does not or cannot pay, in whole or in part, that the guarantor should pay.71 When the petitioner guarantor in this case paid against the will of the debtor VPECI, the debtor VPECI may set up against it defenses available against the creditor SOB at the time of payment. This is the hard lesson that the petitioner must learn.

As the government arm in pursuing its objective of providing "the necessary support and assistance in order to enable … [Filipino exporters and contractors to operate viably under the prevailing economic and business conditions,"72 the petitioner should have exercised prudence and caution under the circumstances. As aptly put by the Court of Appeals, it would be the height of inequity to allow the petitioner to pass on its losses to the Filipino contractor VPECI which had sternly warned against paying the Al Ahli Bank and constantly apprised it of the developments in the Project implementation.

WHEREFORE, the petition for review on certiorari is hereby DENIED for lack of merit, and the decision of the Court of appeals in CA-G.R. CV No. 39302 is AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Panganiban, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.


Footnotes

1 Now known as the Trade Investment Development Corporation of the Philippines.

2 Exhibit "V" and "2-3," Original Record, vol. III (hereinafter OR III), 395.

3 Exh. 12-E," OR III, 433.

4 Exh. 12-E," OR III, 433.

5 Exh. "9-A," OR III, 416.

6 Exh. "12-G," OR III, 435.

7 Exh. "V," OR III, 395.

8 Exh. "13-V," OR III, 447.

9 CA Decision, 3.

10 Exh. "A," OR III, 49.

11 Exh. "B," OR III, 64.

12 Exh. "11," OR III, 421.

13 Exh. "12," OR III, 81.

14 Exh. "E-1," OR III, 83.

15 Exh. "1," OR III, 276.

16 Exh. "1-J," OR III, 282.

17 Exh. "A-1," OR III, 51.

18 Exh. "E-2," OR III, 84.

19 Exhs. "A-2" to "A-13," OR III, 51-63.

20 Exhs. "B-2" to "B-4," OR III, 67-69.

21 Exhs. "E" to "E-12," OR III, 84.

22 TSN, 10 April 1992, 41-44.

23 Exh. "22," OR III, 344-345.

24 Exh."40," OR III, 366.

25 Exh. "16," OR III, 220.

26 Exh. "G-12-a," OR III, 207.

27 Exh. 7-A," OR III, 306.

28 Exh. "G-12-g," OR III, 213.

29 Exh. "I," OR III, 230.

30 Exh."G-12-h," OR III, 214.

31 Exhs. "G-13-d" to "G-13-f," OR III, 220-222; Exh."G-12-h," OR III, 214.

32 Exhs. "Q" to "T," OR III, 254-263.

33 Per Judge Zosimo Z. Angeles. Rollo, 72-79.

34 Per Associate Justice Martin S. Villarama, Jr. with Associate Justices Angelina Sandoval-Gutierrez (now Supreme Court Associate Justice) and Romeo A. Brawner concurring. Rollo, 48-71.

35 Rollo, 61-68.

36 Id., 293-294.

37 Article 2047, Civil Code.

38 E. Zobel Inc. v. CA, G.R. No. 113931, 6 May 1998, 290 SCRA 1; VI Ambrosio Padilla, Civil Law 497-498 (5th ed. 1969)(hereinafter Padilla) .

39 Exh. "A," OR III, 49-50.

40 VI Padilla 494.

41 Black's Law Dictionary 635 (5th ed. 1979).

42 Art. 2047, Civil Code.

43 Alba v. Court of Appeals, G.R. No. 120066, 9 September 1999, 314 SCRA 36.

44 Development Bank of the Philippines v. Court of Appeals, G.R. No. 119712, 29 January 1999, 302 SCRA 362.

45 Disederio P. Jurado, Comments and Jurisprudence on Obligations and Contracts 49 (7th Revised ed. 1980) (hereinafter Jurado ).

46 Jovito R. Salonga, Private International Law 350 (1995 ed.) (hereinafter Salonga).

47 Edgardo L. PAras, Philippine Conflict of Laws 414 (6th ed. 1984).

48 Salonga, 356.

49 Id., 355.

50 Jorge R. Coquia & Elizabeth A. Pangalangan, Conflict of Laws 418 (1995 ed.).

51 Lim v. Collector of Customs, 36 Phil. 472 (1917); International Harvester Co. v. Hamburg-American Line, 42 Phil. 845; Miciano v. Brimo, 50 Phil. 867 (1924).

52 IV Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines 101 (hereinafter Tolentino).

53 Jurado, 50.

54 Exhs. "16" to "16-O,"OR III, 454-469.

55 See Court of Appeals' Decision, 19, Rollo, 66; RTC's Decision, 22, Rollo, 93.

56 RTC's Decision, 22; Rollo, 93.

57 Exhs. "4-A" to "4-D," OR III, 296-298.

58 Exh. "25," OR III, 352.

59 IV Tolentino 110.

60 Id.,102.

61 Id.,110.

62 Art. 2058, Civil Code.

63 Art.1280, Civil Code.

64 Exh. "23," OR III, 348-349.

65 Exh. "25-E," OR III, 355.

66 Exh. "5," OR III, 303-304.

67 Art. 2066, Civil Code.

68 Arts. 1302(3) and 2067, Civil Code.

69 Art. 1236, second par., Civil Code.

70 VI Padilla, 545.

71 V Tolentino, 521.

72 4th Whereas Clause of Executive Order No. 185, which took effect on 5 June 1987.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 95122-23 May 31, 1991

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), BOARD OF SPECIAL INQUIRY, COMMISSIONER ANDREA D. DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD OF SPECIAL INQUIRY, ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN KALAW, petitioners,
vs.
HON. JOSELITO DELA ROSA, Presiding Judge, RTC Manila, Branch 29, WILLIAM T. GATCHALIAN, respondents.

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), BOARD OF SPECIAL INQUIRY, COMMISSIONER ANDREA D. DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD OF SPECIAL INQUIRY, ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN KALAW, petitioners,
vs.
HON. TERESITA DIZON CAPULONG, Presiding Judge, RTC Branch 172, Valenzuela, Metro Manila, DEE HUA T. GATCHALIAN, SHERWING T. GATCHALIAN, KENNETH T. GATCHALIAN, REXLON T. GATCHALIAN, and WESLIE T. GATCHALIAN, respondents.

G.R. Nos. 95612-13 May 31, 1991

WILLIAM T. GATCHALIAN, petitioner,
vs.
BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), et al., respondents.

The Solicitor General for petitioners.

edesma, Saludo & Associates for respondent William Gatchalian.

Cervo and Tanay Law Office for respondent T.D. Capulong, D.H.T. Gatchalian, et al.

BIDIN, J.:p

This is a petition for certiorari and prohibition filed by the Solicitor General seeking 1) to set aside the Resolution/Temporary Restraining Order dated September 7, 1990, issued by respondent Judge de la Rosa in Civil Case No. 90-54214 which denied petitioners' motion to dismiss and restrained petitioners from commencing or continuing with any of the proceedings which would lead to the deportation of respondent William Gatchalian, docketed as D.C. No. 90-523, as well as the Order of respondent Judge Capulong dated September 6, 1990 in Civil Case No. 3431-V-90 which likewise enjoined petitioners from proceeding with the deportation charges against respondent Gatchalian, and 2) to prohibit respondent judges from further acting in the aforesaid civil cases.

On October 23, 1990, respondent Gatchalian filed his Comment with Counter-Petition, docketed as G.R. Nos. 96512-13, alleging lack of jurisdiction on the part of respondent Board of Commissioners, et al., over his person with prayer that he be declared a Filipino citizen, or in the alternative, to remand the case to the trial court for further proceedings.

On December 13, 1990, petitioners filed their comment to respondent Gatchalian's counter-petition. The Court considers the comment filed by respondent Gatchalian as answer to the petition and petitioners' comment as answer to the counter-petition and gives due course to the petitions.

There is no dispute as to the following facts:

On July 12, 1960, Santiago Gatchalian, grandfather of William Gatchalian, was recognized by the Bureau of Immigration as a native born Filipino citizen following the citizenship of his natural mother, Marciana Gatchalian (Annex "1", counter-petition). Before the Citizenship Evaluation Board, Santiago Gatchalian testified that he has five (5) children with his wife Chu Gim Tee, namely: Jose Gatchalian, Gloria Gatchalian, Francisco Gatchalian, Elena Gatchalian and Benjamin Gatchalian (Annex "2", counter-petition).

On June 27, 1961, William Gatchalian, then a twelve-year old minor, arrived in Manila from Hongkong together with Gloria, Francisco, and Johnson, all surnamed Gatchalian. They had with them Certificates of Registration and Identity issued by the Philippine Consulate in Hongkong based on a cablegram bearing the signature of the then Secretary of Foreign Affairs, Felixberto Serrano, and sought admission as Filipino citizens. Gloria and Francisco are the daughter and son, respectively, of Santiago Gatchalian; while William and Johnson are the sons of Francisco.

After investigation, the Board of Special Inquiry No. 1 rendered a decision dated July 6, 1961, admitting William Gatchalian and his companions as Filipino citizens (Annex "C", petition). As a consequence thereof, William Gatchalian was issued Identification Certificate No. 16135 by the immigration authorities on August 16, 1961 (Annex "D", petition).

On January 24, 1962, the then Secretary of Justice issued Memorandum No. 9 setting aside all decisions purporting to have been rendered by the Board of Commissioners on appeal or on review motu proprio of decisions of the Board of Special Inquiry. The same memorandum directed the Board of Commissioners to review all cases where entry was allowed on the ground that the entrant was a Philippine citizen. Among those cases was that of William and others.

On July 6, 1962, the new Board of Commissioners, after a review motu proprio of the proceedings had in the Board of Special Inquiry, reversed the decision of the latter and ordered the exclusion of, among others, respondent Gatchalian (Annex "E", petition). A warrant of exclusion also dated July 6, 1962 was issued alleging that "the decision of the Board of Commissioners dated July 6, 1962 . . . has now become final and executory (Annex "F", petition).

The actual date of rendition of said decision by the Board of Commissioners (whether on July 6, 1962 or July 20, 1962) became the subject of controversy in the 1967 case of Arocha vs. Vivo (21 SCRA 532) wherein this Court sustained the validity of the decision of the new Board of Commissioners having been promulgated on July 6, 1962, or within the reglementary period for review.

Sometime in 1973, respondent Gatchalian, as well as the others covered by the July 6, 1962 warrant of exclusion, filed a motion for re-hearing with the Board of Special Inquiry where the deportion case against them was assigned.

On March 14, 1973, the Board of Special Inquiry recommended to the then Acting Commissioner Victor Nituda the reversal of the July 6, 1962 decision of the then Board of Commissioners and the recall of the warrants of arrest issued therein (Annex "5", counter-petition).

On March 15, 1973, Acting Commissioner Nituda issued an order reaffirming the July 6, 1961 decision of the Board of Special Inquiry thereby admitting respondent Gatchalian as a Filipino citizen and recalled the warrant of arrest issued against him (Annex "6", counter-petition).

On June 7, 1990, the acting director of the National Bureau of Investigation wrote the Secretary of Justice recommending that respondent Gatchalian along with the other applicants covered by the warrant of exclusion dated July 6, 1962 be charged with violation of Sec. 37 (a), pars. 1 and 2, in relation to Secs. 45 (c), and (d) and (e) of Commonwealth Act No. 613, as amended, also known as the Immigration Act of 1940 (Annex "G", petition).

On August 1, 1990, the Secretary of Justice indorsed the recommendation of the NBI to the Commissioner of Immigration for investigation and immediate action (Annex "20", counter-petition).

On August 15, 1990, petitioner Commissioner Domingo of the Commission of Immigration and Deportation * issued a mission order commanding the arrest of respondent William Gatchalian (Annex "18", counter-petition). The latter appeared before Commissioner Domingo on August 20, 1990 and was released on the same day upon posting P200,000.00 cash bond.

On August 29, 1990, William Gatchalian filed a petition for certiorari and prohibition with injunction before the Regional Trial Court of Manila, Br. 29, presided by respondent Judge dela Rosa, docketed as Civil Case No. 90-54214.

On September 4, 1990, petitioners filed a motion to dismiss Civil Case No. 90-54214 alleging that respondent judge has no jurisdiction over the Board of Commissioners and/or the Board of Special Inquiry. Nonetheless, respondent judge dela Rosa issued the assailed order dated September 7, 1990, denying the motion to dismiss.

Meanwhile, on September 6, 1990, respondent Gatchalian's wife and minor children filed before the Regional Trial Court of Valenzuela, Metro Manila, Br. 172, presided by respondent judge Capulong Civil Case No. 3431-V-90 for injunction with writ of preliminary injunction. The complaint alleged, among others, that petitioners acted without or in excess of jurisdiction in the institution of deportation proceedings against William. On the same day, respondent Capulong issued the questioned temporary restraining order restraining petitioners from continuing with the deportation proceedings against William Gatchalian.

The petition is anchored on the following propositions: 1) respondent judges have no jurisdiction over petitioners (Board of Commissioners, et al.,) and the subject matter of the case, appellate jurisdiction being vested by BP 129 with the Court of Appeals; 2) assuming respondent judges have jurisdiction, they acted with grave abuse of discretion in preempting petitioners in the exercise of the authority and jurisdiction to hear and determine the deportation case against respondent Gatchalian, and in the process determine also his citizenship; 3) respondent judge dela Rosa gravely abused his discretion in ruling that the issues raised in the deportation proceedings are beyond the competence and jurisdiction of petitioners, thereby disregarding the cases of Arocha vs. Vivo and Vivo vs. Arca (supra), which put finality to the July 6, 1962 decision of the Board of Commissioners that respondent Gatchalian is a Chinese citizen; and 4) respondent judge Capulong should have dismissed Civil Case No. 3431-V-90 for forum-shopping.

In his counter-petition, William Gatchalian alleges among others that: 1) assuming that the evidence on record is not sufficient to declare him a Filipino citizen, petitioners have no jurisdiction to proceed with the deportation case until the courts shall have finally resolved the question of his citizenship; 2) petitioners can no longer judiciously and fairly resolve the question of respondent's citizenship in the deportation case because of their bias, pre-judgment and prejudice against him; and 3) the ground for which he is sought to be deported has already prescribed.

For purposes of uniformity, the parties herein will be referred to in the order the petitions were filed.

Petitioners argue that under Sec. 9 (3) of BP 129, it is the Court of Appeals which has exclusive appellate jurisdiction over all final judgments or orders of quasi-judicial agencies, boards or commissions, such as the Board of Commissioners and the Board of Special Inquiry.

Respondent, on the other hand, contends that petitioners are not quasi-judicial agencies and are not in equal rank with Regional Trial Courts.

Under Sec. 21 (1) of Batas Pambansa Blg. 129, the Regional Trial Courts have concurrent jurisdiction with this Court and the Court of Appeals to issue "writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions, . . ." Thus, the RTCs are vested with the power to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government.

It is true that under Sec. 9 (3) of Batas Pambansa Blg. 129, the Court of Appeals is vested with —

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, order, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, board or commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of sub-paragraph (1) of the third paragraph of and sub-paragraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.

It does not provide, however, that said exclusive appellate jurisdiction of the Court of Appeals extends to all quasi-judicial agencies. The quasi-judicial bodies whose decisions are exclusively appealable to the Court of Appeals are those which under the law, Republic Act No. 5434, or their enabling acts, are specifically appealable to the Court of Appeals (Presidential Anti-Dollar Salting Task Force vs. Court of Appeals, 171 SCRA 348 [1989]; Lupangco vs. Court of Appeals, 160 SCRA 848 [1988]). Thus, under Republic Act No. 5434, it is specifically provided that the decisions of the Land Registration Commission (LRC), the Social Security Commission (SSC), Civil Aeronautics Board (CAB), the Patent Office and the Agricultural Invention Board are appealable to the Court of Appeals.

In the Presidential Anti-Dollar Salting Task Force (supra), this Court clarified the matter when We ruled:

Under our Resolution dated January 11, 1983:

. . . The appeals to the Intermediate Appellate Court (now Court of Appeals) from quasi-judicial bodies shall continue to be governed by the provisions of Republic Act No. 5434 insofar as the same is not inconsistent with the provisions of B.P. Blg. 129.

The pertinent provisions of Republic Act No. 5434 are as follows:

Sec. 1. Appeals from specified agencies.— Any provision of existing law or Rules of Court to the contrary notwithstanding, parties aggrieved by a final ruling, award, order, or decision, or judgment of the Court of Agrarian Relations; the Secretary of Labor under Section 7 of Republic Act Numbered Six hundred and two, also known as the "Minimum Wage Law"; the Department of Labor under Section 23 of Republic Act Numbered Eight hundred seventy-five, also known as the "Industrial Peace Act"; the Land Registration Commission; the Social Security Commission; the Civil Aeronautics Board; the Patent Office and the Agricultural Inventions Board, may appeal therefrom to the Court of Appeals, within the period and in the manner herein provided, whether the appeal involves questions of fact, mixed questions of fact and law, or questions of law, or all three kinds of questions. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided under Rule 45 of the Rules of Court.

Because of subsequent amendments, including the abolition of various special courts, jurisdiction over quasi-judicial bodies has to be, consequently, determined by the corresponding amendatory statutes. Under the Labor Code, decisions and awards of the National Labor Relations Commission are final and executory, but, nevertheless, reviewable by this Court through a petition for certiorari and not by way of appeal.

Under the Property Registration Decree, decision of the Commission of Land Registration, en consulta, are appealable to the Court of Appeals.

The decisions of the Securities and Exchange Commission are likewise appealable to the Appellate Court, and so are decisions of the Social Security Commission.

As a rule, where legislation provides for an appeal from decisions of certain administrative bodies to the Court of Appeals, it means that such bodies are co-equal with the Regional Trial Courts, in terms of rank and stature, and logically, beyond the control of the latter. (Emphasis supplied)

There are quasi-judicial agencies, as the National Labor Relations Commissions, whose decisions are directly appealable to this Court. It is only when a specific law, as Republic Act No. 5434, provides appeal from certain bodies or commissions to the Court of Appeals as the Land Registration Commission (LRC), Securities and Exchange Commission (SEC) and others, that the said commissions or boards may be considered co-equal with the RTCs in terms of rank, stature and are logically beyond the control of the latter.

However, the Bureau of Immigration (or CID) is not among those quasi-judicial agencies specified by law whose decisions, orders, and resolutions are directly appealable to the Court of Appeals. In fact, its decisions are subject to judicial review in accordance with Sec. 25, Chapter 4, Book VII of the 1987 Administrative Code, which provides as follows:

Sec. 25. Judicial Review.—(1) Agency decisions shall be subject to judicial review in accordance with this chapter and applicable laws.

xxx xxx xxx

(6) The review proceeding shall be filed in the court specified in the statute or, in the absence thereof, in any court of competent jurisdiction in accordance with the provisions on venue of the Rules of Court.

Said provision of the Administrative Code, which is subsequent to B.P. Blg. 129 and which thus modifies the latter, provides that the decision of an agency like the Bureau of Immigration should be subject to review by the court specified by the statute or in the absence thereof, it is subject to review by any court of competent jurisdiction in accordance with the provisions on venue of the Rules of Court.

B.P. Blg. 129 did not intend to raise all quasi-judicial bodies to the same level or rank of the RTC except those specifically provided for under the law as aforestated. As the Bureau of Immigration is not of equal rank as the RTC, its decisions may be appealable to, and may be reviewed through a special civil action for certiorari by, the RTC (Sec. 21, (1) BP 129).

True, it is beyond cavil that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and in the process, determine also their citizenship (Lao Gi vs. Court of Appeals, 180 SCRA 756 [1989]). And a mere claim of citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in deportation proceedings (Miranda vs. Deportation Board, 94 Phil. 531 [1954]).

However, the rule enunciated in the above-cases admits of an exception, at least insofar as deportation proceedings are concerned. Thus, what if the claim to citizenship of the alleged deportee is satisfactory? Should the deportation proceedings be allowed to continue or should the question of citizenship be ventilated in a judicial proceeding? In Chua Hiong vs. Deportation Board (96 Phil. 665 [1955]), this Court answered the question in the affirmative, and We quote:

When the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings. A citizen is entitled to live in peace, without molestation from any official or authority, and if he is disturbed by a deportation proceeding, he has the unquestionable right to resort to the courts for his protection, either by a writ of habeas corpus or of prohibition, on the legal ground that the Board lacks jurisdiction. If he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished its investigation of his undesirability.

. . . And if the right (to peace) is precious and valuable at all, it must also be protected on time, to prevent undue harassment at the hands of ill-meaning or misinformed administrative officials. Of what use is this much boasted right to peace and liberty if it can be availed of only after the Deportation Board has unjustly trampled upon it, besmirching the citizen's name before the bar of public opinion? (Emphasis supplied)

The doctrine of primary jurisdiction of petitioners Board of Commissioners over deportation proceedings is, therefore, not without exception (Calacday vs. Vivo, 33 SCRA 413 [1970]; Vivo vs. Montesa, 24 SCRA 155 [1967]). Judicial intervention, however, should be granted only in cases where the "claim of citizenship is so substantial that there are reasonable grounds to believe that the claim is correct. In other words, the remedy should be allowed only on sound discretion of a competent court in a proper proceeding (Chua Hiong vs. Deportation Board, supra; Co. vs. Deportation Board, 78 SCRA 107 [1977]). It appearing from the records that respondent's claim of citizenship is substantial, as We shall show later, judicial intervention should be allowed.

In the case at bar, the competent court which could properly take cognizance of the proceedings instituted by respondent Gatchalian would nonetheless be the Regional Trial Court and not the Court of Appeals in view of Sec. 21 (1), BP 129, which confers upon the former jurisdiction over actions for prohibition concurrently with the Court of Appeals and the Supreme Court and in line with the pronouncements of this Court in Chua Hiong and Co cases.

Ordinarily, the case would then be remanded to the Regional Trial Court. But not in the case at bar. Considering the voluminous pleadings submitted by the parties and the evidence presented, We deem it proper to decide the controversy right at this instance. And this course of action is not without precedent for "it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Court of Appeals and from there to this Court" (Marquez vs. Marquez, 73 Phil. 74; Keramic Industries, Inc. vs. Guerrero, 61 SCRA 265 [1974]) Alger Electric, Inc. vs. Court of Appeals (135 SCRA 37 [1985]), citing Gayos vs. Gayos (67 SCRA 146 [1975]).

In Lianga Bay Logging Co., Inc. vs. Court of Appeals (157 SCRA 357 [1988]), We also stated:

Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties (Quisumbing vs. CA, 112 SCRA 703; Francisco, et al., vs. The City of Davao, et al., supra; Republic vs. Security Credit & Acceptance Corp., et al., 19 SCRA 58; Samal vs. CA, supra; Republic vs. Central Surety & Insurance Co., 25 SCRA 641).

Likewise in Tejones vs. Gironella (159 SCRA 100 [1988]), We said:

Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez vs. Garcia, 92 Phil. 592, 297). A marked characterstic of our judicial set-up is that where the dictates of justice so demand . . . the Supreme Court should act, and act with finality (Li Siu Liat vs. Republic, 21 SCRA 1039, 1046, citing Samal vs. CA, 99 Phil. 230 and US vs. Gimenez, 34 Phil. 74.) (Beautifont, Inc. vs. Court of appeals, et al., Jan. 29, 1988; See also Labo vs. Commission on Elections, 176 SCRA 1 [1989]).

Respondent Gatchalian has adduced evidence not only before the Regional Trial Court but also before Us in the form of public documents attached to his pleadings. On the other hand, Special Prosecutor Renato Mabolo in his Manifestation (dated September 6, 1990; Rollo, p. 298, counter-petition) before the Bureau of Immigration already stated that there is no longer a need to adduce evidence in support of the deportation charges against respondent. In addition, petitioners invoke that this Court's decision in Arocha vs. Vivo and Vivo vs. Arca (supra), has already settled respondent's alienage. Hence, the need for a judicial determination of respondent's citizenship specially so where the latter is not seeking admission, but is already in the Philippines (for the past thirty [30] years) and is being expelled (Chua Hiong vs. Deportation Board, supra).

According to petitioners, respondent's alienage has been conclusively settled by this Court in the Arocha and Vivo cases, We disagree. It must be noted that in said cases, the sole issue resolved therein was the actual date of rendition of the July 6, 1962 decision of the then board of Commissioners, i.e., whether the decision was rendered on July 6, 1962 or on July 20, 1962 it appearing that the figure (date) "20" was erased and over it was superimposed the figure "6" thereby making the decision fall within the one-year reglementary period from July 6, 1961 within which the decision may be reviewed. This Court did not squarely pass upon any question of citizenship, much less that of respondent's who was not a party in the aforesaid cases. The said cases originated from a petition for a writ of habeas corpus filed on July 21, 1965 by Macario Arocha in behalf of Pedro Gatchalian. Well settled is the rule that a person not party to a case cannot be bound by a decision rendered therein.

Neither can it be argued that the Board of Commissioners' decision (dated July 6, 1962) finding respondent's claim to Philippine citizenship not satisfactorily proved, constitute res judicata. For one thing, said decision did not make any categorical statement that respondent Gatchalian is a Chinese. Secondly, the doctrine of res judicata does not apply to questions of citizenship (Labo vs. Commission on Elections (supra); citing Soria vs. Commissioner of Immigration, 37 SCRA 213; Lee vs. Commissioner of Immigration, 42 SCRA 561 [1971]; Sia Reyes vs. Deportation Board, 122 SCRA 478 [1983]).

In Moy Ya Lim vs. Commissioner of Immigration (41 SCRA 292 [1971]) and in Lee vs. Commissioner of Immigration (supra), this Court declared that:

(e)verytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand.

An exception to the above rule was laid by this Court in Burca vs. Republic (51 SCRA 248 [1973]), viz:

We declare it to be a sound rule that where the citizenship of a party in a case is definitely resolved by a court or by an administrative agency, as a material issue in the controversy, after a full-blown hearing with the active participation of the Solicitor General or his authorized representative, and this finding or the citizenship of the party is affirmed by this Court, the decision on the matter shall constitute conclusive proof of such party's citizenship in any other case or proceeding. But it is made clear that in no instance will a decision on the question of citizenship in such cases be considered conclusive or binding in any other case or proceeding, unless obtained in accordance with the procedure herein stated.

Thus, in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present: 1) a person's citizenship must be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding or citizenship is affirmed by this Court.

Gauged by the foregoing, We find the pre-conditions set forth in Burca inexistent in the Arocha and Vivo cases relied upon by petitioners. Indeed, respondent William Gatchalian was not even a party in said cases.

Coming now to the contention of petitioners that the arrest of respondent follows as a matter of consequence based on the warrant of exclusion issued on July 6, 1962, coupled with the Arocha and Vivo cases (Rollo, pp. 33), the Court finds the same devoid of merit.

Sec. 37 (a) of Commonwealth Act No. 613, as amended, otherwise known as the Immigration Act of 1940, reads:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioner of the existence of the ground for deportation as charged against the alien. (Emphasis supplied)

From a perusal of the above provision, it is clear that in matters of implementing the Immigration Act insofar as deportation of aliens are concerned, the Commissioner of Immigration may issue warrants of arrest only after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien. In other words, a warrant of arrest issued by the Commissioner of Immigration, to be valid, must be for the sole purpose of executing a final order of deportation. A warrant of arrest issued by the Commissioner of Immigration for purposes of investigation only, as in the case at bar, is null and void for being unconstitutional (Ang Ngo Chiong vs. Galang, 67 SCRA 338 [1975] citing Po Siok Pin vs. Vivo, 62 SCRA 363 [1975]; Vivo vs. Montesa, 24 SCRA 155; Morano vs. Vivo, 20 SCRA 562; Qua Chee Gan vs. Deportation Board, 9 SCRA 27 [1963]; Ng Hua To vs. Galang, 10 SCRA 411; see also Santos vs. Commissioner of Immigration, 74 SCRA 96 [1976]).

As We held in Qua Chee Gan vs. Deportation Board (supra), "(t)he constitution does not distinguish warrants between a criminal case and administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee?" It is not indispensable that the alleged alien be arrested for purposes of investigation. If the purpose of the issuance of the warrant of arrest is to determine the existence of probable cause, surely, it cannot pass the test of constitutionality for only judges can issue the same (Sec. 2, Art. III, Constitution).

A reading of the mission order/warrant of arrest (dated August 15, 1990; Rollo, p. 183, counter-petition) issued by the Commissioner of Immigration, clearly indicates that the same was issued only for purposes of investigation of the suspects, William Gatchalian included. Paragraphs 1 and 3 of the mission order directs the Intelligence Agents/Officers to:

xxx xxx xxx

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Sec. 5, for violation of the Immigration Act, Sec. 37, para. a; Secs. 45 and 46 Administrative Code;

xxx xxx xxx

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel; . . .

Hence, petitioners' argument that the arrest of respondent was based, ostensibly, on the July 6, 1962 warrant of exclusion has obviously no leg to stand on. The mission order/warrant of arrest made no mention that the same was issued pursuant to a final order of deportation or warrant of exclusion.

But there is one more thing that militates against petitioners' cause. As records indicate, which petitioners conveniently omitted to state either in their petition or comment to the counter-petition of respondent, respondent Gatchalian, along with others previously covered by the 1962 warrant of exclusion, filed a motion for re-hearing before the Board of Special Inquiry (BSI) sometime in 1973.

On March 14, 1973, the Board of Special Inquiry, after giving due course to the motion for re-hearing, submitted a memorandum to the then Acting Commissioner Victor Nituda (Annex "5", counter-petition) recommending 1 the reconsideration of the July 6, 1962 decision of the then Board of Commissioners which reversed the July 6, 1961 decision of the then Board of Special Inquiry No. 1 and 2 the lifting of the warrants of arrest issued against applicants. The memorandum inferred that the "very basis of the Board of Commissioners in reversing the decision of the Board of Special Inquiry was due to a forged cablegram by the then Secretary of Foreign Affairs, . . ., which was dispatched to the Philippine Consulate in Hong Kong authorizing the registration of applicants as P.I. citizens." The Board of Special Inquiry concluded that "(i)f at all, the cablegram only led to the issuance of their Certificate(s) of Identity which took the place of a passport for their authorized travel to the Philippines. It being so, even if the applicants could have entered illegally, the mere fact that they are citizens of the Philippines entitles them to remain in the country."

On March 15, 1973, then Acting Commissioner Nituda issued an Order (Annex "6", counter-petition) which affirmed the Board of Special Inquiry No. 1 decision dated July 6, 1961 admitting respondent Gatchalian and others as Filipino citizens; recalled the July 6, 1962 warrant of arrest and revalidated their Identification Certificates.

The above order admitting respondent as a Filipino citizen is the last official act of the government on the basis of which respondent William Gatchalian continually exercised the rights of a Filipino citizen to the present. Consequently, the presumption of citizenship lies in favor of respondent William Gatchalian.

There should be no question that Santiago Gatchalian, grandfather of William Gatchalian, is a Filipino citizen. As a matter of fact, in the very order of the BOC of July 6, 1962, which reversed the July 6, 1961 BSI order, it is an accepted fact that Santiago Gatchalian is a Filipino. The opening paragraph of said order states:

The claim to Filipino citizenship of abovenamed applicants is based on the citizenship of one Santiago Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order dated July 12, 1960. (Annex "37", Comment with Counter-Petition).

Nonetheless, in said order it was found that the applicants therein have not satisfactorily proven that they are the children and/or grandchildren of Santiago Gatchalian. The status of Santiago Gatchalian as a Filipino was reiterated in Arocha and Arca (supra) where advertence is made to the "applicants being the descendants of one Santiago Gatchalian, a Filipino." (at p. 539).

In the sworn statement of Santiago Gatchalian before the Philippine Consul in Hongkong in 1961 (Annex "1" to the Comment of petitioners to Counter-Petition), he reiterated his status as a Philippine citizen being the illegitimate child of Pablo Pacheco and Marciana Gatchalian, the latter being a Filipino; that he was born in Manila on July 25, 1905; and that he was issued Philippine Passport No. 28160 (PA-No. A91196) on November 18, 1960 by the Department of Foreign Affairs in Manila. In his affidavit of January 23, 1961 (Annex "5", counter-petition), Santiago reiterated his claim of Philippine citizenship as a consequence of his petition for cancellation of his alien registry which was granted on February 18, 1960 in C.E.B. No. 3660-L; and that on July 20, 1960, he was recognized by the Bureau of Immigration as a Filipino and was issued Certificate No. 1-2123.

The dissenting opinions of my esteemed brethrens, Messrs. Justices F.P. Feliciano and H.G. Davide, Jr., proposing to re-open the question of citizenship of Santiago Gatchalian at this stage of the case, where it is not even put in issue, is quite much to late. As stated above, the records of the Bureau of Immigration show that as of July 20, 1960, Santiago Gatchalian had been declared to be a Filipino citizen. It is a final decision that forecloses a re-opening of the same 30 years later. Petitioners do not even question Santiago Gatchalian's Philippine citizenship. It is the citizenship of respondent William Gatchalian that is in issue and addressed for determination of the Court in this case.

Furthermore, petitioners' position is not enhanced by the fact that respondent's arrest came twenty-eight (28) years after the alleged cause of deportation arose. Section 37 (b) of the Immigration Act states that deportation "shall not be effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation arises." In Lam Shee vs. Bengzon (93 Phil. 1065 [1953]), We laid down the consequences of such inaction, thus:

There is however an important circumstance which places this case beyond the reach of the resultant consequence of the fraudulent act committed by the mother of the minor when she admitted that she gained entrance into the Philippines by making use of the name of a Chinese resident merchant other than that of her lawful husband, and that is, that the mother can no longer be the subject of deportation proceedings for the simple reason that more than 5 years had elapsed from the date of her admission. Note that the above irregularity was divulged by the mother herself, who in a gesture of sincerity, made an spontaneous admission before the immigration officials in the investigation conducted in connection with the landing of the minor on September 24, 1947, and not through any effort on the part of the immigration authorities. And considering this frank admission, plus the fact that the mother was found to be married to another Chinese resident merchant, now deceased, who owned a restaurant in the Philippines valued at P15,000 and which gives a net profit of P500 a month, the immigration officials then must have considered the irregularity not serious enough when, inspire of that finding, they decided to land said minor "as a properly documented preference quota immigrant" (Exhibit D). We cannot therefore but wonder why two years later the immigration officials would reverse their attitude and would take steps to institute deportation proceedings against the minor.

Under the circumstances obtaining in this case, we believe that much as the attitude of the mother would be condemned for having made use of an improper means to gain entrance into the Philippines and acquire permanent residence there, it is now too late, not to say unchristian, to deport the minor after having allowed the mother to remain even illegally to the extent of validating her residence by inaction, thus allowing the period of prescription to set in and to elapse in her favor. To permit his deportation at this late hour would be to condemn him to live separately from his mother through no fault of his thereby leaving him to a life of insecurity resulting from lack of support and protection of his family. This inaction or oversight on the part of immigration officials has created an anomalous situation which, for reasons of equity, should be resolved in favor of the minor herein involved. (Emphasis supplied)

In the case at bar, petitioners' alleged cause of action and deportation against herein respondent arose in 1962. However, the warrant of arrest of respondent was issued by Commissioner Domingo only on August 15, 1990 — 28 long years after. It is clear that petitioners' cause of action has already prescribed and by their inaction could not now be validly enforced by petitioners against respondent William Gatchalian. Furthermore, the warrant of exclusion dated July 6, 1962 was already recalled and the Identification certificate of respondent, among others, was revalidated on March 15, 1973 by the then Acting Commissioner Nituda.

It is also proposed in the dissenting opinions of Messrs. Justices Feliciano and Davide, Jr., that the BOC decision dated July 6, 1962 and the warrant of exclusion which was found to be valid in Arocha should be applicable to respondent William Gatchalian even if the latter was not a party to said case. They also opined that under Sec. 37 (b) of the Immigration Act, the five (5) years limitation is applicable only where the deportation is sought to be effected under clauses of Sec. 37 (b) other than clauses 2, 7, 8, 11 and 12 and that no period of limitation is applicable in deportations under clauses 2, 7, 8, 11 and 12.

The Court disagrees. Under Sec. 39 of the Immigration Act, it is reiterated that such deportation proceedings should be instituted within five (5) years. Section 45 of the same Act provides penal sanctions for violations of the offenses therein enumerated with a fine of "not more than P1,000.00 and imprisonment for not more than two (2) years and deportation if he is an alien." Thus:

Penal Provisions

Sec. 45. Any individual who—

(a) When applying for an immigration document personates another individual, or falsely appears in the name of deceased individual, or evades the immigration laws by appearing under an assumed name; fictitious name; or

(b) Issues or otherwise disposes of an immigration document, to any person not authorized by law to receive such document; or

(c) Obtains, accepts or uses any immigration document, knowing it to be false; or

(d) Being an alien, enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by wilful, false, or misleading representation or wilful concealment of a material fact; or

(e) Being an alien shall for any fraudulent purpose represent himself to be a Philippine citizen in order to evade any requirement of the immigration laws; or

(f) In any immigration matter shall knowingly make under oath any false statement or representations; or

(g) Being an alien, shall depart from the Philippines without first securing an immigration clearance certificates required by section twenty-two of this Act; or

(h) Attempts or conspires with another to commit any of the foregoing acts, shall be guilty of an offense, and upon conviction thereof, shall be fined not more than one thousand pesos, and imprisoned for not more than two years, and deported if he is an alien. (Emphasis supplied)

Such offenses punishable by correctional penalty prescribe in 10 years (Art. 90, Revised Penal Code); correctional penalties also prescribe in 10 years (Art. 92, Revised Penal Code).

It must be noted, however, that under Sec. 1, Act No. 3326 [1926], as amended, (Prescription for Violations Penalized by Special Acts and Municipal Ordinances) "violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: . . .c) after eight years for those punished by imprisonment for two years or more, but less than six years; . . ."

Consequently, no prosecution and consequent deportation for violation of the offenses enumerated in the Immigration Act can be initiated beyond the eight-year prescriptive period, the Immigration Act being a special legislation.

The Court, therefore, holds that the period of effecting deportation of an alien after entry or a warrant of exclusion based on a final order of the BSI or BOC are not imprescriptible. The law itself provides for a period of prescription. Prescription of the crime is forfeiture or loss of the rights of the State to prosecute the offender after the lapse of a certain time, while prescription of the penalty is the loss or forfeiture by the government of the right to execute the final sentence after the lapse of a certain time (Padilla, Criminal Law, Vol. 1, 1974, at p. 855).

"Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings." (Lao Gi vs. Court of Appeals, supra). Under Sec. 6, Rule 39 of the Rules of Court, a final judgment may not be executed after the lapse of five (5) years from the date of its entry or from the date it becomes final and executory. Thereafter, it may be enforced only by a separate action subject to the statute of limitations. Under Art. 1144 (3) of the Civil Code, an action based on judgment must be brought within 10 years from the time the right of action accrues.

In relation to Sec. 37 (b) of the Immigration Act, the rule, therefore, is:

1. Deportation or exclusion proceedings should be initiated within five (5) years after the cause of deportation or exclusion arises when effected under any other clauses other than clauses 2, 7, 8, 11 and 12 and of paragraph (a) of Sec. 37 of the Immigration Act; and

2. When deportation or exclusion is effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of Sec. 37, the prescriptive period of the deportation or exclusion proceedings is eight (8) years.

In the case at bar, it took petitioners 28 years since the BOC decision was rendered on July 6, 1962 before they commenced deportation or exclusion proceedings against respondent William Gatchalian in 1990. Undoubtedly, petitioners' cause of action has already prescribed. Neither may an action to revive and/or enforce the decision dated July 6, 1962 be instituted after ten (10) years (Art. 1144 [3], Civil Code).

Since his admission as a Filipino citizen in 1961, respondent William Gatchalian has continuously resided in the Philippines. He married Ting Dee Hua on July 1, 1973 (Annex "8", counter-petition) with whom he has four (4) minor children. The marriage contract shows that said respondent is a Filipino (Annex "8"). He holds passports and earlier passports as a Filipino (Annexes "9", "10" & "11", counter-petition). He is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage (Annex 12, counter-petition). He engaged in business in the Philippines since 1973 and is the director/officer of the International Polymer Corp. and Ropeman International Corp. as a Filipino (Annexes, "13" & "14", counter-petition). He is a taxpayer. Respondent claims that the companies he runs and in which he has a controlling investment provides livelihood to 4,000 employees and approximately 25,000 dependents. He continuously enjoyed the status of Filipino citizenship and discharged his responsibility as such until petitioners initiated the deportation proceedings against him.

"The power to deport an alien is an act of the State. It is an act by or under the authority of the sovereign power. It is a police measure against undesirable aliens whose presence in the country is found to be injurious to the public good and domestic tranquility of the people" (Lao Gi vs. Court of Appeals, supra). How could one who has helped the economy of the country by providing employment to some 4,000 people be considered undesirable and be summarily deported when the government, in its concerted drive to attract foreign investors, grants Special Resident Visa to any alien who invest at least US$50,000.00 in the country? Even assuming arguendo that respondent is an alien, his deportation under the circumstances is unjust and unfair, if not downright illegal. The action taken by petitioners in the case at bar is diametrically opposed to settled government policy.

Petitioners, on the other hand, claim that respondent is an alien. In support of their position, petitioners point out that Santiago Gatchalian's marriage with Chu Gim Tee in China as well as the marriage of Francisco (father of William) Gatchalian to Ong Chiu Kiok, likewise in China, were not supported by any evidence other than their own self-serving testimony nor was there any showing what the laws of China were. It is the postulate advanced by petitioners that for the said marriages to be valid in this country, it should have been shown that they were valid by the laws of China wherein the same were contracted. There being none, petitioners conclude that the aforesaid marriages cannot be considered valid. Hence, Santiago's children, including Francisco, followed the citizenship of their mother, having been born outside of a valid marriage. Similarly, the validity of the Francisco's marriage not having been demonstrated, William and Johnson followed the citizenship of their mother, a Chinese national.

After a careful consideration of petitioner's argument, We find that it cannot be sustained.

In Miciano vs. Brimo (50 Phil. 867 [1924]; Lim and Lim vs. Collector of Customs, 36 Phil. 472; Yam Ka Lim vs. Collector of Customs, 30 Phil. 46 [1915]), this Court held that in the absence of evidence to the contrary, foreign laws on a particular subject are presumed to be the same as those of the Philippines. In the case at bar, there being no proof of Chinese law relating to marriage, there arises the presumption that it is the same as that of Philippine law.

The lack of proof of Chinese law on the matter cannot be blamed on Santiago Gatchalian much more on respondent William Gatchalian who was then a twelve-year old minor. The fact is, as records indicate, Santiago was not pressed by the Citizenship Investigation Board to prove the laws of China relating to marriage, having been content with the testimony of Santiago that the Marriage Certificate was lost or destroyed during the Japanese occupation of China. Neither was Francisco Gatchalian's testimony subjected to the same scrutiny by the Board of Special Inquiry. Nevertheless, the testimonies of Santiago Gatchalian and Francisco Gatchalian before the Philippine consular and immigration authorities regarding their marriages, birth and relationship to each other are not self-serving but are admissible in evidence as statements or declarations regarding family reputation or tradition in matters of pedigree (Sec. 34, Rule 130). Furtheremore, this salutary rule of evidence finds support in substantive law. Thus, Art. 267 of the Civil Code provides:

Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. (See also Art. 172 of the Family Code)

Consequently, the testimonies/affidavits of Santiago Gatchalian and Francisco Gatchalian aforementioned are not self-serving but are competent proof of filiation (Art. 172 [2], Family Code).

Philippine law, following the lex loci celebrationis, adheres to the rule that a marriage formally valid where celebrated is valid everywhere. Referring to marriages contracted abroad, Art. 71 of the Civil Code (now Art. 26 of the Family Code) provides that "(a)ll marriages performed outside of the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country . . ." And any doubt as to the validity of the matrimonial unity and the extent as to how far the validity of such marriage may be extended to the consequences of the coverture is answered by Art. 220 of the Civil Code in this manner: "In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression." (Emphasis supplied). Bearing in mind the "processual presumption" enunciated in Miciano and other cases, he who asserts that the marriage is not valid under our law bears the burden of proof to present the foreign law.

Having declared the assailed marriages as valid, respondent William Gatchalian follows the citizenship of his father Francisco, a Filipino, as a legitimate child of the latter. Francisco, in turn is likewise a Filipino being the legitimate child of Santiago Gatchalian who (the latter) is admittedly a Filipino citizen whose Philippine citizenship was recognized by the Bureau of Immigration in an order dated July 12, 1960.

Finally, respondent William Gatchalian belongs to the class of Filipino citizens contemplated under Sec. 1, Article IV of the Constitution, which provides:

Sec. 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. . . .

This forecloses any further question about the Philippine citizenship of respondent William Gatchalian.

The Court is not unaware of Woong Woo Yiu vs. Vivo (13 SCRA 552 [1965]) relied upon by petitioners. The ruling arrived thereat, however, cannot apply in the case at bar for the simple reason that the parties therein testified to have been married in China by a village leader, which undoubtedly is not among those authorized to solemnize marriage as provided in Art. 56 of the Civil Code (now Art. 7, Family Code).

Premises considered, the Court deems it unnecessary to resolve the other issues raised by the parties.

WHEREFORE, G.R. Nos. 95122-23 is DISMISSED for lack of merit; G.R. Nos. 95612-13 is hereby GRANTED and respondent William Gatchalian is declared a Filipino citizen. Petitioners are hereby permanently enjoined from continuing with the deportation proceedings docketed as DC No. 90-523 for lack of jurisdiction over respondent Gatchalian, he being a Filipino citizen; Civil Cases No. 90-54214 and 3431-V-90 pending before respondent judges are likewise DISMISSED. Without pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr., Gancayco, Sarmiento, Griño-Aquino and Medialdea, JJ., concur.

Fernan, C.J., and Narvasa, J., concur in the result.

Separate Opinions

DAVIDE, JR., J., concurring-dissenting:

I can easily agree with the summary of antecedent facts in the ponencia of Mr. Justice Bidin and the reiteration therein of the established doctrine that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against alleged aliens, and in the process, determine also their citizenship, and that "a mere claim of citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in deportation proceedings." I also agree with the conclusion that the petitioners in G.R. No. 95122-23, the Board of Commissioners and Board of Special Inquiry, hereinafter referred to as the Boards, are quasi-judicial bodies.

However, I cannot go along with the view that the case of William Gatchalian should be treated as an exception to that doctrine and, above all, to the law which vests upon the Court of Appeals exclusive appellate jurisdiction over the Boards. Neither can I have solidarity with his opinion that this Court should, in this instance, rule on the citizenship of Mr. Gatchalian instead of remanding the case to the Regional Trial Court. To grant him these benefits would do violence to the law, liberally stretch the limits of the exceptions or misapply the exceptionary rule, and to unduly pollute the settled doctrine. No fact or circumstance exists to justify the application of the exceptions for the benefit of Mr. Gatchalian. On the contrary, substantial facts exist to render immutable the unqualified application of the law and the doctrine.

To my mind, the questioned acts of the Boards were done absolutely within their quasi-judicial functions. Therefore, the rule laid down in Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25) and Lupangco vs. Court of Appeals (160 SCRA 848) does not apply.

Consequently, pursuant to paragraph 3 of Section 9 of Batas Pambansa Blg. 129, and Our resolutions of 15 September 1987 and 2 April 1990 in G.R. No. 79635 (Commissioner of Customs vs. Court of Tax Appeals, et al.) and G.R. No. 80320 (Commissioner of Internal Revenue vs. Court of Tax Appeals, et al.), respectively, and Our decisions of 16 March 1989, 22 December 1989, and 6 June 1990 in G.R. No. 83578 (Presidential Anti-Dollar Salting Task Force vs. Court of Appeals, et al.), 171 SCRA 348, G.R. No. 86625 (Development Bank of the Philippines vs. Court of Tax Appeals, et al.), 180 SCRA 609, 617, and in G.R. No. L-48113 (Yang vs. Court of Appeals, et al.), respectively, the Gatchalians should have invoked the exclusive appellate jurisdiction of the Court of Appeals for appropriate redress instead of filing petitions for certiorari and prohibition with injunction before the Regional Trial Court of Manila (Civil Case No. 90-54214) and before the Regional Trial Court of Valenzuela, Metro Manila (Civil Case No. 3431-V-90). The trial courts should have dismissed the cases. In issuing the questioned orders, respondents Judge Dela Rosa and Judge Capulong clearly acted without jurisdiction or with grave abuse of discretion.

As to why William Gatchalian filed his petition before the former court and his wife and minor children filed a separate complaint before the latter has not been explained. It is to be noted that he is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage (Annex 12, Counter-Petition). Therefore, he should have filed his petition with the Regional Trial Court of Valenzuela. His wife and minor children are not parties to the case before the Commission on Immigration and Deportation. Their causes of action are based mainly on their claim that the acts of the Boards against William tend to deprive plaintiff mother consortium and connubium and the plaintiffs minors protection and support. At once, the viability of their causes of action is doubtful; however, if indeed they have valid causes of action, they could have been joined as co-plaintiffs in the case filed by William. It appears then that their filing of a separate complaint before another court was part of a strategy to frustrate the proceedings before the Boards. As correctly maintained by the petitioning Boards, we have here a clear case of forum-shopping, especially considering the fact that on September 4, 1990, or two days before the filing of the case before the Valenzuela court the government filed a motion to dismiss the case before the Manila court. Forum-shopping has long been condemned and proscribed. In People vs. Court of Appeals, et al. (101 SCRA 450, 463), promulgated on 28 November 1980, this Court held that a party "should not be allowed to pursue simultaneous remedies in two different forums." In the Resolution of 31 July 1986 in E. Razon Inc., et al. vs. Philippine Port Authority, et al., G.R. No. 75197, this Court held:

The acts of petitioners constitute a clear case of forum-shopping, an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes. It is improper conduct that tends to degrade the administration of justice. (See also Buan vs. Lopez, Jr., 145 SCRA 34; Palm Avenue Realty Development Corp. vs. PCGG, 153 SCRA 591; Minister of Natural Resources, et al. vs. Heirs of Orval Hughes, et al., 155 SCRA 566; Limpin vs. IAC, 161 SCRA 98; Collado vs. Hernando, 161 SCRA 639; Villanueva, et al. vs. Adre, et al., 172 SCRA 877; Danville Maritime, Inc. vs. COA, 175 SCRA 717; Crisostomo vs. SEC, 179 SCRA 154; Adlawan vs. Tomol, 179 SCRA 42; and Alonto vs. Memoracion, 185 SCRA 73).

William Gatchalian did not stop in his forum-shopping in the regional trial courts. Under the guise of a counter-petition, he is now before this Court in an active offensive role. This is a very clever, albeit subtle, ploy to bang directly to this Court the issue of his deportation and to divest the Boards of their original jurisdiction thereon. He could have done this at the first instance; he did not. He and his wife and minor children deliberately chose, instead, to separately go to the wrong court, evidently to delay the proceedings before the Boards, which they accomplished when the two judges separately issued orders restraining said Boards from commencing or continuing with any of the proceedings which would lead to the deportation of William Gatchalian (Civil Case No. 90-54214) and from proceeding with the deportation charges against William Gatchalian (Civil Case No. 3431-V-90).

Chua Hiong vs. Deportation Board (96 Phil. 665) cited in the ponencia as another authority which allows William Gatchalian to enjoy the protective mantle of the exceptionary rule affecting the exclusive power of the Commission on Immigration and Deportation to try and hear cases against aliens and in the process also determine their citizenship is either not applicable or is mis-applied. This case laid down the principle that "when the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings. . . . If he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished its investigation of his undesirability. . . ." (emphasis supplied). The word courts should not now be interpreted to mean or to include the regional trial courts because, as stated above, said courts do not have any appellate jurisdiction over the Commission on Immigration and Deportation, the Board of Commissioners and the Board of Special Inquiry. This case was decided in 1955 yet, or twenty-six years before the effectivity of Batas Pambansa Blg. 129.

The condition sine qua non then to an authorized judicial intervention is that the evidence submitted by a respondent is conclusive of his citizenship, or as stated in Co vs. Deportation Board, (78 SCRA 104, 107), the claim of citizenship is so substantial that there are no reasonable grounds for the belief that the claim is correct.

The facts before this Court do not constitute, or even show, a conclusive or substantial evidence that William Gatchalian is a Filipino citizen. On the contrary, very serious doubts surround such a claim from the beginning. His initial entry into the Philippines was made possible through a Certificate of Identity (as Filipino) which was issued on the basis of a forged cablegram by the then Secretary of Foreign Affairs. Then on 6 July 1962 the then new Board of Commissioners promulgated a written decision in I.C. Cases Nos. 61-2108-C to 61-2116-C inclusive (Application for admission as Philippine citizens of Jose, Elena, Benjamin, Juan, Pedro, Gloria, Francisco, William and Johnson, all surnamed Gatchalian) reversing the decision of the Board of Special Inquiry No. 1 of 6 July 1961 and ordering the exclusion of William Gatchalian and the others as aliens not properly documented. Accordingly, a warrant of exclusion, also dated 6 July 1962, was issued by the Commissioners commanding the deportation officer to exclude William Gatchalian, and others, and to cause their removal from the country on the first available transportation in accordance with law to the port of the country of which they were nationals. The pertinent portion of the Decision reads as follows:

The claim to Philippine citizenship of above-named applicants is based on the citizenship of one Santiago Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order, dated July 12, 1960. It is alleged that applicants JOSE GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and BENJAMIN GATCHALIAN are the legitimate children of Santiago Gatchalian with one Chiu Gim Tee. Except for the self-serving testimonies of Santiago Gatchalian and his alleged children, there has not been submitted any evidence of Santiago Gatchalian's marriage to Chiu Gim Tee and the birth of the alleged children of the couple. The personal records of Santiago Gatchalian on file with this office do not reflect the names of applicants as his children, and while two names listed in his Form 1 (ACR application), Jose and Elena, bear the same name as two of herein applicants, the difference in the ages of said applicants, casts serious doubt on their identity. Apropos, the applicants JOSE GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and BENJAMIN GATCHALIAN, not having satisfactorily proved as the children of Santiago Gatchalian, determination of the citizenship of the other applicants, JUAN GATCHALIAN, PEDRO GATCHALIAN and JOHNSON GATCHALIAN, whose right to Filipino citizenship are merely drawn from their fathers, Jose Gatchalian and Francisco Gatchalian, is unnecessary. (Decision, Annex "E" of Petition).

Looking back to the case of Santiago, William's alleged grandfather, I cannot find sufficient credible evidence to support his claim of Filipino citizenship. For a long time before 20 July 1960 he considered himself a Chinese citizen. The "conclusion" of the Bureau of Immigration that Santiago is a Filipino citizen is based on totally questionable and insufficient evidence which cannot inspire belief. The Order itself, signed by Associate Commissioner Felix Talabis, supports this conclusion. It reads in full as follows:

This is a petition for the cancellation of an alien registry of SANTIAGO GATCHALIAN, registered as Chinese and holder of ACR No. A-219003 issued at Manila on 13 February 1951 and ICR No. 7501 dated 3 May 1946. He is alleged to be the son of Filipino parents who were not lawfully married.

It is alleged that the petitioner was born in Binondo, Manila, on 25 July 1905, to Pablo Pacheco and Marciana Gatchalian. It is noted that in his application for alien registration filed with this Office on 13 January 1951, Santiago Gatchalian stated that his deceased parents were Pablo Pacheco and Marciana. He was identified by his only brother, Joaquin Pacheco, who insisted that he and petitioner are illegitimate. It is true that, on record, there is a certificate signed on 26 October 1902 by Maxima Gatchalian, their maternal grandmother, giving consent to the marriage of Marciana Gatchalian to Pablo Pacheco (Exh. B), but Joaquin said that his parents did not actually get married. In proof of this, the baptismal record of the petitioner expressly states that Santiago Gatchalian was born on 25 July 1905 and baptized on 6 October 1905, being the son of Marciana Gatchalian, "filipina", and an unknown father (verbatim copy dated 22 June 1907, Parish Priest of Binondo, Manila).

The petitioner, apparently not completely certain about his civil status, has been interchangeably using his paternal and maternal surnames. In school he was known as Santiago Pacheco (Class card for 1920-21, Meisic, Manila; Certificates of completion of third and fourth grades, Meisic Primary School); but in his residence certificate dated 17 September 1937, and in Tax Clearance Certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes office.

Considering, however, the positive assertion by his elder brother who is better informed about their origin, the incontestable entry in his baptismal record that he is illegitimate and the entry in the marriage contract of his elder brother wherein the father's name is omitted and the mother, Marciana Gatchalian, is described as Filipina (marriage contract dated 29 November 1936) there is sufficient evidence to establish that Santiago Gatchalian is really Filipino at birth, being the legitimate child of a Filipino woman.

WHEREFORE, the herein petition to cancel his alien registration is granted, petitioner shall henceforth be shown in the records of this office as a citizen of the Philippines and the issuance to him of the appropriate Identification certificate showing his correct status is hereby authorized. (Order of 12 July 1960, Annex "1" of Comment with Counter-Petition).

As to his alleged marriage to Chu Gim Tee, and their five children, we only have his self-selling oral testimony, thus:

Q What is the name of your wife?

A Her name is Chu Gim Tee.

Q Is she still alive?

A No, she died in 1951, in Amoy.

Q Do you have children with her, if so, mention their names, ages and sexes?

A Yes. I have five children, all of them alive and they are as follows:

Jose Gatchalian, born on Jan. 2, 1927 in Amoy; Gloria Gatchalian, born February 20, 1929 in Amoy; Francisco Gatchalian, born on March 3, 1931 in Amoy; Elena Gatchalian, born on April 4, 1933 in Amoy; Benjamin Gatchalian, born on 31 March 1942 in Amoy.

Q Where are they living now?

A All of them are now living in Macao, with my sister-in-law by the name of Chu Lam Tee. (p. 4, Transcript of the proceedings before the Citizen Evaluation Board on 12 February 1960, Annex "2" of Comment with Counter-Petition).

If indeed Santiago's parents, Pablo Pacheco and Marciana Gatchalian, were married, what was his reason for insisting, through his brother Joaquin, that he, is an illegitimate son? The only possible reason is that Pablo Pacheco is a Chinese citizen, in which case Santiago would follow the citizenship of Marciana, a "filipina." But to give full faith and credit to the oral insistence of illegitimacy is to do violence to the presumptions of validity of marriage, the indissolubility of the marriage bonds and the legitimacy of children. (Art. 220, Civil Code). These are among the presumptions which the ponencia precisely applied when it rejected the petitioners' claim that Santiago failed to establish his claimed marriage to Chu Gim Tee and Francisco's (father of William) claimed marriage to Ong Chiu Kiok, both of which were allegedly celebrated abroad. I cannot find any valid justification why these presumptions should be liberally applied in favor of claimed marriages allegedly celebrated abroad but denied to purported marriages celebrated in the Philippines.

Interestingly, Santiago used the surname Pacheco during such proceedings and when he testified, he gave his name as Santiago Gatchalian Pacheco. This is an incontrovertible proof that he recognized the legitimate union of his father and mother.

On 18 February 1960, Santiago was recalled to be confronted re his claim as to the number of his children; he testified thus:

Q In your testimony on February 12, this year, you named as your children the following: Jose, Gloria, Francisco, Elena and Benjamin, all born in Amoy, arranged according to the order of their ages. However, in your Form 1 when you secured your ACR in 1951, you mentioned only Jose Gatchalian and Elena Gatchalian. Why, what is the reason why in this form that you filled up in 1951, you mentioned only Jose and Elena?

A That form I am not the one who filled it because that is not my handwriting. It is the handwriting of my broker or the clerk of my broker. However, when they prepared that I mentioned my children named Jose, Gloria, Francisco, Elena in a piece of paper which I gave to him, except Benjamin.

Q Why did you not mention Benjamin in the list?

A Because he was not yet baptized then. (Transcript, p. 7, Annex "2" of Comment with Counter-Petition).

The explanation is very flimsy and does not deserve the respect of a passing glance.

There is no showing that Gatchalian took any immediate definite positive step against the 6 July 1962 decision and the warrant of exclusion.

It was only sometime in 1973, or eleven years after, that he and others covered by the warrant of expulsion filed a motion for re-hearing with the Board of Special Inquiry. There has been no explanation for the unreasonable delay in the filing of the motion. It may be surmised that it was due to his minority, considering that he was allegedly only twelve years old when he arrived in Manila from Hongkong on 27 June 1961. But, such minority was no obstacle to the filing of any remedial action for and in his behalf.

The action taken by and the recommendation of the Board of Special Inquiry of 14 March 1973 to the then Acting Commissioner Victor Nituda for the reversal of the July 6, 1962 decision of the Board of Commissioners were not only highly anomalous, irregular and improper, it was done without any semblance of authority. The Board of Special Inquiry did not have the power to review, modify or reverse a Decision of the Board of Commissioners rendered about eleven years earlier. Then Acting Commissioner Victor Nituda, acting alone, did not likewise have the power or authority to approve the recommendation of said Board, to revive and/or reaffirm the July 6, 1961 decision of the Board of Special Inquiry, to reverse, and nullify, the Decision of 6 July 1962 of the Board of Commissioners, and to order the admission of William Gatchalian as a Filipino citizen. Pursuant to Sec. 26 (b) of C.A. No. 613, as amended (The Philippine Immigration Act of 1940), only the Board of Commissioners can act on the recommendation, if at all it was legally and validly done. The Board of Commissioners is composed of the Commissioner of Immigration and the two Deputy Commissioners. In the absence of any member of the Board, the Department Head shall designate an officer or employee in the Bureau of Immigration to serve as member thereof. In any case coming before it, the decision of any two members shall prevail. (Sec. 8, C.A. No. 613 as amended). The Department Head referred to is the Secretary of Justice since the Commission is, for administrative purposes, under the supervision and control of the Department of Justice.

The decision then of Acting Commissioner Nituda was void and invalid ab initio. In view thereof, the rationalization in the ponencia that the issue could be re-opened since the decision of the Board of Commissioners of 6 July 1962 did not constitute res judicata is irrelevant. But even if it is to be conceded that the 6 July 1962 decision did not constitute res judicata, I find it both strange and illogical to give full faith and credit to the unilateral action of Mr. Nituda and to use it to bar the Boards from exercising its power and jurisdiction over William Gatchalian.

Assuming that indeed William is the grandson of Santiago, I find it rather strange why Santiago did not mention him in his testimony before the Citizenship Evaluation Board. At that time William was already eleven years old. It is logical to presume that the proceeding initiated by Santiago was principally for the benefit of his alleged children and grandchildren. It was, as subsequent events proved, intended to prepare the legal basis for their entry into the country as Filipino citizens. Thus, eleven months after he obtained a favorable decision from the Board, and on two successive dates, his alleged children and grandchildren entered the country. On 25 June 1961 his alleged children Jose, Elena, Benjamin, and his alleged grandchildren Pedro and Juan arrived from Hongkong. On 27 June 1961, his alleged daughter Gloria and son Francisco with his alleged children William and Johnson also arrived from Hongkong. (pp. 4-5, Petition).

That he has continuously resided in the Philippines since 1961; he is married to Ting Dee Hua on July 1, 1973, and his marriage contract shows that he is a Filipino citizen; he holds passports and earlier passports as a Filipino; he is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage; he is engaged in business in the Philippines since 1973, and is a director/officer of the International Polymer Corp. and Ropeman International Corp. as a Filipino, and that the companies he runs and in which he has a controlling investment provided a livelihood to 4,000 employees and approximately 25,000 dependents; he is a taxpayer; and he has continuously enjoyed the status of Filipino citizenship, discharged his responsibility as such until petitioning Boards initiated the deportation proceedings against him, are not of any help to William Gatchalian. For, they neither confer nor strengthen his claim of Filipino citizenship since they are all rooted on the illegal and void decision of then Acting Commissioner Victor Nituda of 15 March 1973. A decision which is void and invalid ab initio cannot be a source of valid acts. Neither can such substantive infirmity be cured by salutary acts that tend to confirm the status conferred by the void decision.

In the light of the foregoing, it follows that the warrant of exclusion issued against William Gatchalian pursuant to and by virtue of the 6 July 1962 Decision of the Board of Commissioners subsists and remains valid and enforceable.

I disagree with the view advanced in the ponencia that the State can no longer enforce the warrant of exclusion because it is already barred by prescription considering that Section 37 (b) of the Immigration Act states that deportation "shall not be effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation arises."

Said paragraph (b) of Section 37 reads in full as follows:

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 paragraph (a) of this section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause of deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court or judge thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported. (As amended by Sec. 13, R.A. No. 503). (Emphasis supplied).

Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11 and 12, the limitation does not apply. These clauses read as follows:

(2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;

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(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non- immigrant;

(8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government, or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines;

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(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;

(12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four Hundred and Seventy-Three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship;

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Mr. Gatchalian is covered by clause (2); besides, the warrant for his exclusion was issued within a period of five years following his entry.

Lam Shee vs. Bengzon (93 Phil. 1065) is not applicable to Mr. Gatchalian. In issue in that case was the deportation of a minor whose mother fraudulently entered the Philippines by using the name of a resident Chinese merchant who is not her lawful husband but against whom no deportation proceedings was initiated within five years following her entry. Said mother did in fact acquire permanent residence status. Furthermore, the minor's mother never claimed to be a Filipino citizen.

IN VIEW OF ALL THE FOREGOING, I vote to GRANT the petition in G.R. Nos. 95122-23, SET ASIDE the questioned orders of respondents Judge Joselito Dela Rosa and Judge Teresita Dizon Capulong as having been issued beyond their jurisdiction, ORDER the DISMISSAL of Civil Case Nos. 90-54214 of the Regional Trial Court of Manila and 3431-V-90 of the Regional Trial Court of Valenzuela, Metro Manila and to DISMISS for lack of merit the COUNTER-PETITION.

FELICIANO, J., dissenting:

I regret I am unable to join the opinion written by my distinguished brother in the Court, Mr. Justice A.A. Bidin, and I, therefore, undertake to submit this separate opinion.

For convenience, the following is a precis of the matters discussed in detail below.

1. I agree that the Warrant of Arrest dated 14 August 1990 is defective in its language. The surrounding facts, however, make quite clear that an amended warrant of arrest or mission order, or a new one correctly worded, may be issued by Immigration Commissioner Domingo for the purpose of carrying out an existing and valid Warrant of Exclusion covering respondent William Gatchalian and his co-applicants for admission.

2. The 6 July 1962 Decision of the Board of Commissioners ("BOC") and Warrant of Exclusion remain valid and effective and enforceable against respondent William Gatchalian, and his co-applicants for that matter. That Decision reversed a 6 July 1961 decision of the Board of Special Inquiry ("BSI") and held that respondent William Gatchalian and his co-applicants failed to subtantiate and prove their claim to Philippine citizenship in 1961. Respondent William Gatchalian does not claim Philippine citizenship by any mode of entitlement subsequent to his application for entry as a citizen of the Philippines in 1961, i.e., by any act or circumstance subsequent to his birth and supposed filiation as a legitimate son of Francisco Gatchalian, also a supposed citizen of the Philippines.

3. In its Decision in Arocha vs. Vivo, 1 the Supreme Court upheld the validity and legal effect of the 6 July 1962 Decision of the BOC and the Warrant of Exclusion not only against Pedro Gatchalian, the particular Gatchalian who was taken into custody by immigration authorities in 1965, but also against Pedro's co-applicants, which include respondent William Gatchalian. The validity of the claim to Philippine citizenship by Pedro Gatchalian, as a supposed descendant of Santiago Gatchalian, allegedly a natural born citizen of the Philippines, was directly placed in issue in the 1961-1962 proceedings before the BSI and the BOC, and by the Solicitor General and Pedro Gatchalian in Arocha vs. Vivo (supra). In upholding the validity and legal effect of the 6 July 1962 BOC Decision that the Gatchalian applicants had not substantiated their claim to Philippine citizenship, this Court in effect ruled that the Gatchalian applicants were not Philippine citizens, whatever their true nationality might be.

4. Should this Court now determine to examine once more the claim to Philippine citizenship of respondent William Gatchalian, a detailed examination of the facts, including the supposed status of Santiago Gatchalian as a natural born Philippine citizenship, shows that those claims to Philippine citizenship were indeed not proven by respondent William Gatchalian and his co-applicants. Since respondent William Gatchalian does not claim to have been naturalized as a Philippine citizen after rendition of the 6 July 1962 BOC Decision, he must accordingly be held to be not a Philippine citizen.

5. Should the legal results thus reached seem harsh to some, I respectfully submit that the remedy lies not with this Court which is charged with the application of the law as it is in fact written, but with the political branches of the Government. It is those departments of Government which must consider the desirability and wisdom of enacting legislation providing for the legalization of the entry and stay of aliens who may be in the same situation as respondent William Gatchalian and his co-applicants.

I

1. Petitioner argues that respondent William Gatchalian's arrest follows as a matter of "consequence" of the Warrant of Exclusion issued by the BOC on 6 July 1962. This is opposed by respondent Gatchalian upon the ground that the Mission Order or Warrant of Arrest does not mention that it is issued pursuant to a final order of deportation or Warrant of Exclusion.

The Mission Order or Warrant of Arrest dated 14 August 1990 issued by petitioner Commissioner Domingo, CID, reads in part as follows:

Intelligence Officers/Agents: All Teams

Team No.

Subject: William, Juan, Francisco, Jose, Benjamin, Jonathan, Pedro, Gloria, Elena, all surnamed Gatchalian

Address: Bgy. Canumay, Valenzuela, M.M.

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1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Section 5, for violation of the Immigration Act, Section 37, para. a; Secs. 45 and 46 Administrative Code;

2. Make a warrantless search as an incident to a lawful arrest under Rule 125, Section 12.

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel;

4. Prepare and file an affidavit of arrest with the Special Prosecutor's Office and, in case of a search, prepare and file an inventory of the properties seized, verified under oath following Office Memorandum Order No. 45

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The above Mission Order merely referred to Section 37 (a) of the Immigration Act, as amended, and to Sections 45 and 46 of the Administrative Code (should be Immigration Law), and that its wording suggests that the arrest is sought to be carried out for the purpose of carrying out a preliminary investigation or custodial interrogation rather than for the purpose of enforcing a final order of deportation or warrant of exclusion. More specifically, the Mission Order failed to mention the 6 July 1962 BOC Decision and Warrant of Exclusion. At the same time, there is no gainsaying the fact that the 6 July 1962 BOC Decision and Warrant of Exclusion do exist and became final and, as discussed in detail below, remain valid and effective.

It should be noted also that by 6 September 1990, Special Prosecutor Mabolo had filed a Manifestation or Motion before the Bureau of Immigration explicitly referring to the Warrant of Exclusion issued against respondent William Gatchalian and his original co-applicants for admission in 1961, which had been passed upon in Arocha vs. Vivo (supra), and argued that there was, therefore, no longer any need to adduce evidence in support of the charges against respondent William Gatchalian.

Thus it appears to me that the Warrant of Arrest or Mission Order dated 15 August 1990, ineptly worded as it is, may be amended so as to refer explicitly to the mentioned Warrant of Exclusion, or a new warrant of arrest or mission order issued similarly explicitly referring to the Warrant of Exclusion.

2. It is indispensably necessary to refer to the Warrant of Exclusion of 6 July 1962 which read as follows:

WHEREAS, upon review, motu proprio of the proceedings had on the application for admission as Philippine citizens of JOSE GATCHALIAN, ELENA GATCHALIAN, BENJAMIN GATCHALIAN, JUAN GATCHALIAN, PEDRO GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, WILLIAM GATCHALIAN, and JOHNSON GATCHALIAN, the Board of Commissioners found them not entitled to admission as Filipinos in a Decision, dated July 6, 1962, and ordered their exclusion as persons not properly documented;

AND WHEREAS, the Decision of the Board of Commissioners, dated 6 July 1962, ordering the exclusion of above-named applicants, has now become final and executory.

NOW THEREFORE, by virtue of the authority vested in the undersigned by law, you are hereby ordered to exclude the aforenamed individuals and cause their removal from this country to the port where they came or to the port of the country of which they are nationals, on the first available transportation, in accordance with law. (Emphasis supplied)

It should be noted that respondent William Gatchalian was a party to the 1961-1962 proceedings before the Bureau of Immigration which proceedings culminated in the 6 July 1962 Decision of the BOC and the aforequoted Warrant of Exclusion.

It is, however, insisted by respondent William Gatchalian that the Warrant of Exclusion may no longer be executed or implemented as against him in view of the passage of approximately twenty-eight (28) years since the issuance of such Warrant. Respondent Gatchalian here relies upon Section 37 (b) of the Immigration Act which states that:

Sec. 37 (b). Deportation may be effected under clauses 2, 3, 7, 8, 11 and 12 of the Par. (a) of this Section at any time after entry, but shall not be effected under any other clauses unless the arrest in the deportation proceedings is made within five (5) years after the cause for deportation arises . . . (Emphasis supplied)

Examination of the above quoted Section 37 (b) shows that the five (5) year-limitation is applicable only where deportation is sought to be effected under clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be effected under clauses 2, 7, 8 11 and 12 of Section 37 (a), no period of limitation is applicable; and that, to the contrary, deportation or exclusion may be effected "at any time after entry."

Examination of contemporaneous facts shows that the Government has sought to effect the exclusion and deportation of respondent William Gatchalian upon the ground that he had entered the country as a citizen of the Philippines when he was not lawfully admissible as such at the time of entry under Section 37 (a) (2), since the BOC had held him and the other Gatchalians there involved as not properly documented for admission, under Section 29 (a) (17) of the Immigration Act, as amended. On 7 July 1990, the Acting Director of the National Bureau of Investigation ("NBI") initiated the proceedings immediately before us by writing to the Secretary of Justice recommending that respondent William Gatchalian, and his co-applicants covered by the Warrant of Exclusion dated 6 July 1962, be charged with: "Violation of Section 37 (a), paragraphs 1 and 2, in relation to Section 45 (c), (d) and (e) of Commonwealth Act 613 as amended, also known as the Immigration Act of 1940." The Secretary of Justice endorsed this recommendation to Immigration Commissioner Domingo for investigation and immediate action. On 20 August 1990, Special Prosecutor Mabolo filed a charge sheet against respondent William Gatchalian which specified the following charges:

The respondent is an alien national who unlawfully gained entry into the Philippines without valid travel document in violation of the Immigration Act; Sec. 37 par. a, sub pars. (1) and (2);

That respondent being an alien misrepresented himself as Philippine Citizen by false statements and fraudulent documents in violation of the Immigration Act, Sec. 45, par. (c), (d) and (e).

That respondent being an alien national is an undocumented person classified as excludable under the Immigration Act, Sec. 29 (a) sub par. (17).

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(Emphasis supplied)

Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides as follows:

Sec. 37 (a). The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.

(1) Any alien who enters the Philippines after the effective date of this act by means of false and misleading statements or without inspection and admission by the Immigration authorities at a designated port of entry or at any place other than at a designated port of entry; (As amended by Republic Act No. 503).

(2) An alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry.

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(Emphasis supplied)

Section 37 (a) (2), quoted above, relates back to Section 29 (a) of the Immigration Act, as amended, which lists the classes of alien excluded from entry in the Philippines, as follows:

Sec. 29. (a). The following classes of aliens shall be excluded from entry into the Philippines;

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(17) Persons not properly documented for admission as may be required under the provisions of this act. (Emphasis supplied)

Thus, in the instant case, the net result is that no time limitation is applicable in respect of the carrying out of the Warrant of Exclusion issued in 1962.

A little reflection suffices to show why this must be so. What was involved in 1961 when the supposed children and grandchildren of Santiago Gatchalian first descended upon the Philippines, was the right of a person claiming to be a Philippine citizen to enter for the first time and reside in the Philippines. On the part of the Government, what was at stake was the right to exclude from the country persons who had claimed the right to enter the country as Philippine citizens but who had failed to substantiate such claimed status. Aliens seeking entry into the Philippines do not acquire the right to be admitted into the country by the simple passage of time. Exclusion of persons found not to be entitled to admission as Philippine citizens, must be distinguished from the deportation of aliens, who, after having been initially lawfully admitted into the Philippines, committed acts which rendered them liable to deportation.

Normally, aliens excluded are immediately sent back to their country of origin. 2 This is so in cases where the alien has not yet gained a foothold into the country and is still seeking physical admittance. However, when the alien had already physically gained entry but such entry is later found unlawful or devoid of legal basis, the alien can be excluded any time after it is found that he was not lawfully admissible at the time of his entry. Technically, the alien in this case is being excluded; however, the rules on deportation can be made to apply to him in view of the fact that the cause for his exclusion is discovered only after he had gained physical entry.

It is worth noting at this point that in Arocha vs. Vivo (supra), this Court upheld the 6 July 1962 Order of the BOC and the application of the Warrant of Exclusion, in respect of Pedro Gatchalian, even though more than five (5) years had elapsed by the time the Court's Decision was promulgated on 26 October 1967.

Though respondent William Gatchalian is physically inside the country, it is the government's basic position that he was never lawfully admitted into the country, having failed to prove his claim of Philippine citizenship, and hence the Warrant of Exclusion of 6 July 1962, or a new Warrant of Exclusion for that matter, may be executed "at any time" under Section 37 (b). It is the correctness of that basic position which must be ascertained and in that ascertainment, the mere passage of time is quite peripheral in relevance considering the express language of Section 37 (b).

My distinguished brother, Bidin, J., finally invokes Act No. 3326, and on the basis of Section 1 thereof, would hold that where the arrest for purpose of deportation is made more than five (5) years after the cause for deportation arose, the prescriptive period of eight (8) years should be applied. Act No. 3326 which took effect on 4 December 1926, establishes prescriptive periods in respect of criminal prosecutions for violations penalized not by the Revised Penal Code but rather by special acts which do not otherwise establish a period of prescription. In other words, Act No. 3326 establishes a statute of limitations for the institution of criminal proceedings. It is, however, quite settled that deportation proceedings cannot be assimilated to criminal prosecutions for violation either of the Revised Penal Code or of special statutes. 3 Moreover, Act No. 3326 purports to be applicable only where the special act itself has not established an applicable statute of limitations for criminal proceedings. It cannot, however, be said that Article 37 (b) of the Immigration Act (quoted earlier) has not established an applicable statute of limitations. For, precisely, Section 37 (b) of the Immigration Act states that deportation may be effected under certain clauses of Section 37 (a) "at any time after entry." One of those instances is, precisely, deportation upon the ground specified in Clause (2) of 37 (a) which relates to "any alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry." Thus, the Immigration Act, far from failing to specify a prescriptive period for deportation under Section 37 (a) (2), expressly authorizes deportation under such ground "at any time after entry." It is, thus, very difficult to see how Act No. 3326 could apply at all to the instant case.

Finally, we must recall once more that what is actually involved in the case at bar is exclusion, not deportation.

3. It is urged by the government that Arocha vs. Vivo (supra) has already resolved the claim to Philippine citizenship of respondent William Gatchalian adversely to him and that such ruling constitutes res judicata. Upon the other hand, respondent William Gatchalian vehemently argues that neither the 6 July 1962 BOC's Decision nor Arocha definitely settled the question of his citizenship.

My respectful submission is that respondent William Gatchalian's argument constitutes a highly selective reading of both the BOC Decision and the Decision in Arocha Written by J.B.L. Reyes, J. for a unanimous court. The 6 July 1962 Decision of the BOC, in its dispositive portion, reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Board finds and hereby holds that the applicants [Jose Gatchalian, Elena Gatchalian, Benjamin Gatchalian, Juan Gatchalian, Pedro Gatchalian, Gloria Gatchalian, Francisco Gatchalian, William Gatchalian and Johnson Gatchalian] herein have not satisfactorily proved their claim to Philippine citizenship and therefore the Decision of the Board of Special Inquiry, dated July 6, 1961 admitting them as Filipinos is hereby reversed, and said applicants should be, as they are hereby ordered excluded as persons not properly documented.

SO ORDERED. (Emphasis supplied)

Since respondent William Gatchalian and his co-applicants in 1961 claimed the right to enter the country as Philippine citizens, determination of their right to enter the Philippines thus indispensably involved the resolution of their claim to Philippine citizenship. In other words, the determination of that citizenship in the instant case was not a mere incident of the case; it was rather the central and indeed the only issue that had to be resolved by the BOC. Review of the 1961 proceedings before the BSI shows that the sole issue before it was the supposed Philippine citizenship of the applicants. Thus, the very same issue of claimed Philippine citizenship was resolved by the BOC when it reversed the 6 July 1961 decision of the BSI. This case may be distinguished from other types of cases, e.g., applications for public utility franchises, petitions for change of name, applications for registration as voter, filing of certificates of candidacy for an elective position, etc., where the central issue is not citizenship although resolution of that issue requires a determination of the citizenship of the applicant, candidate or petitioner.

The ruling of the BOC that respondent William Gatchalian and his co-applicants for admission as Philippine citizens had not satisfactorily proved their claim to Philippine citizenship, can only be reasonably read as a holding that respondent William Gatchalian and his co-applicants were not Philippine citizens, whatever their true nationality or nationalities might be. Thus, it appears to be merely semantic play to argue, as respondent William Gatchalian argues, that the 1962 BOC Decision did not categorically hold him to be an "alien" and that the BOC had merely held him and his co-applicants as "not properly documented." The phrase "not properly documented" was strictly and technically correct. For William Gatchalian and his co-applicants had presented themselves as Philippine citizens and as such entitled to admission into the country. Since the BOC rejected their claims to Philippine citizenship, William Gatchalian and his co-applicants were non-Filipinos "not properly documented for admission" under Section 29 (a) (17), Immigration Act as amended.

4. In Arocha vs. Vivo (supra), the Supreme Court had before it the following items:

1. The 6 July 1961 Decision of the BSI which allowed the entry of respondent Gatchalian and his co-applicants as citizens of the Philippines;

2. A split BOC Decision approving the 6 July 1961 BSI decision, which had been "noted" by two (2) Commissioners but rejected by Commissioner Galang on 14 and 26 July 1961 and 21 August 1961, respectively;

3. The 6 July 1962 Decision of the BOC in which the BOC had reviewed motu proprio the Gatchalian proceedings before the BSI and reversed the BSI decision of 6 July 1961;

4. The Warrant of Exclusion dated 6 July 1962 issued pursuant to the 6 July 1962 Decision of the BOC; and

5. A decision of the Manila Court of First Instance dated 31 July 1965, rendered in a habeas corpus proceeding brought to effect the release of Pedro Gatchalian who had been taken into custody by immigration officials pursuant to the 6 July 1962 Warrant of Exclusion.

The Court of First Instance ("CFI") decision ordered Pedro Gatchalian's release upon the ground that the 6 July 1962 BOC Decision had been issued beyond the one (1) year period for review of the BSI decision of 6 July 1961. The CFI decision was reversed and nullified by the Supreme Court.

The Supreme Court held that the BOC Decision of 6 July 1962 had not been antedated and that it was valid and effective to reverse and nullify the BSI order granting admission to the Gatchalians as citizens of the Philippines.

The Court also held that the split BOC decision of July-August 1961 did not operate to confirm and render final the BSI decision of 6 July 1961, the split decision being null and void because it had not been rendered by the BOC as a body.

The Court further rejected Pedro Gatchalian's argument that he was not bound by the 6 July 1962 BOC Decision:

It is argued for the appellee that the minutes in Exh. 5-A refer only to the cases of Gloria, Francisco and Benjamin Gatchalian. But the designation of the case is "Gloria Gatchalian, et al." No reason is shown why the case of these three should be considered and voted upon separately, considering that the claims to citizenship and entry of all were based on the same circumstances, applicants being the descendants of one Santiago Gatchalian, a Filipino and that all their applications for entry were in fact jointly resolved by the Board of Inquiry in one single decision (Annex 1, petition, G.R. No. L-24844). 4

I respectfully submit that the above-quoted ruling in Arocha disposes of the contention here being made by respondent William Gatchalian that he is not bound by the Decision in Arocha vs. Vivo, Arocha held that the 1962 BOC Decision was valid and effective and William was certainly one of the applicants for admission in the proceedings which began in 1961 before the BSI.

Respondent William Gatchalian contends that the Court in Arocha did not find him nor any of his co-applicants to be aliens and that all the Court did was to hold that the 6 July 1962 Board of Commissioners decision had not been antedated. This contention cannot be taken seriously. As has already been pointed out several times, the 1962 Board of Commissioners decision held that William Gatchalian and his eight (8) other co-applicants for admission had not proved their claim to Philippine citizenship; not being Filipinos, they must have been aliens, to be excluded as persons not properly documented. Moreover, a review of the Rollo in Arocha vs. Vivo shows that the parties there had expressly raised the issue of the citizenship of Pedro Gatchalian in their pleadings. The Solicitor General, in his fifth assignment of error, argued that the Court of First Instance had erred in declaring Pedro Gatchalian a Filipino, and simultaneously urged that the 6 July 1962 decision of the Board of Commissioners was quite correct. Pedro Gatchalian, upon the other hand, contended that precisely because he was a Filipino, the Bureau of Immigration had no jurisdiction to exclude him. 5

The Court also said in Arocha:

Finally, it is well to note that appellee did not traverse the allegation of appellant Commissioners in their return to the writ of Habeas Corpus that appellee Pedro Gatchalian gained entry on the strength of a forged cablegram, purportedly signed by the former Secretary of Foreign Affairs Felixberto Serrano, and apparently authorizing appellee's documentation as a Filipino (par. 3[a] of Return, C.F.I. Rec., pp. 15-16). Such failure to deny imports admission of its truth by the appellee, establishes that his entry was irregular. Neither has he appealed the decision of the Commissioners of Immigration to the Department Head. 6

Since the physical entry of Pedro Gatchalian was effected simultaneously with that of Francisco and William Gatchalian, on exactly the same basis and on the strength of the same forged cablegram allegedly from then Secretary of Foreign Affairs Felixberto Serrano, it must follow that the entry of Francisco and William Gatchalian was similarly irregular. The applications for admission of the nine (9) Gatchalians were all jointly resolved by the BSI on 6 July 1961 on the identical basis that they were all descendants of Santiago Gatchalian, a supposed natural born Philippine citizen.

5. The purported reversal of the 1962 BOC Decision by Commissioner Nituda in 1973, cannot be given any effect. A close examination of the same reveals that such purported reversal was highly irregular.

Respondent William Gatchalian alleges that Mr. Nituda, being in 1973 Acting Commissioner of Immigration, had the authority to reverse the BOC Decision of 6 July 1962, since he (Nituda) had immediate control, direction and supervision of all officers, clerks and employees of the Bureau of Immigration. Control means, respondent Gatchalian continues, the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. 7

Respondent Gatchalian's view is obviously flawed. The Commissioner's power of control over the officers and employees of the Bureau of Immigration cannot be compared to the power of control and supervision vested by the Constitution in the President of the Philippines (which was what Ham was all about), for the Commissioner's general power of control cannot be said to include the power to review and set aside the prior final decision reached by the BOC. The Commissioner of Immigration, acting alone, cannot be regarded as an authority higher than the BOC itself (constituted by the Commissioner and the two [2] Associate Commissioners), in respect of matters vested by the governing statute in such Board itself. One of these matters is precisely the hearing and deciding of appeals from decisions of the BSI, and the motu proprio review of the entire proceedings of a case within one (1) year from the promulgation of a decision by the BSI. 8

Respondent Gatchalian points to Section 29 (b) of the Immigration Act as amended, as empowering Nituda to reverse the 1962 BOC Decision. Section 29 (b) reads as follows:

Section 29. . . .

xxx xxx xxx

(b) Notwithstanding the provisions of this section, the Commissioner of Immigration, in his discretion, may permit to enter (sic) any alien properly documented, who is subject to exclusion under this section, but who is —

(1) an alien lawfully resident in the Philippines who is returning from a temporary visit abroad;

(2) an alien applying for temporary admission.

It is difficult to understand respondent's argument. For one thing, Section 29 (b) relates to an "alien properly documented" while respondent Gatchalian precisely claims to be a citizen of the Philippines rather than a resident alien returning from a temporary visit abroad or an alien applying for temporary admission.

It should be recalled that Nituda's 1973 Decision approved a ruling rendered by a Board of Special Inquiry in 1973 that respondent Gatchalian was properly documented, a ruling which was precipitated by a "Petition for Rehearing" filed by respondent Gatchalian and his co-applicants in 8 March 1972 before the BSI. There are a number of obvious defects in the action of the BSI. Firstly, the motion for rehearing was filed way out of time. Rule 3, B 22 of the Immigration Rules and Regulations of 1 January 1941 provides as follows:

At any time before the alien is deported, but not later than seven days from the date he receives notice of the decision on appeal of the Board of Commissioners, the applicant or his attorney or counsel may file a petition for rehearing only on the ground of newly discovered evidence. Such petition shall be in writing and shall set forth the nature of the evidence discovered and the reason or reasons why it was not produced before. . . . (Emphasis supplied)

Respondent Gatchalian's and his co-applicants' motion for rehearing was filed, not seven (7) days but rather ten (10) years after notice of the 1962 BOC Decision had been received by them. Secondly, Rule 3, B 25 of the Immigration Rules and Regulations prescribed that any motion for rehearing shall be filed only with the Board of Commissioners; the Gatchalians' motion for rehearing was filed with the BSI which then purported to reopen the case "without first securing the consent in writing of the Commissioner of Immigration" as required by Rule 2, D 20.

Furthermore, the purported reversal of the 1962 BOC Decision was made not by the duly constituted BOC in 1973, but only by its Chairman, then Acting Commissioner Nituda. Mr. Nituda's action flew in the face of Rule 3, B 22 of the Immigration Rules and Regulation, which mandates that the decision of any two (2) members of the BOC shall prevail. It thus appears that Mr. Nituda purported to act as if he were the entire BOC. Indeed, even the BOC itself in 1973 could not have lawfully reversed a final decision rendered by the BOC ten (10) years ago. 9

We must, finally, not lose sight of the ruling in Arocha vs. Vivo (supra) where the Supreme Court expressly outlined the procedure to be followed by the BOC in resolving cases before them. This court was very explicit in holding that individual actions of members of the BOC are legally ineffective:

. . . [T]he former Immigration Commissioners appeared to have acted individually in this particular instance and not as a Board. It is shown by the different dates affixed to their signatures that they did not actually meet to discuss and vote on the case. This was officially made to record by the Secretary of Justice in his Memorandum Order No. 9, on January 24, 1962, wherein he stated.

that for the past several years, the Board of Commissioners of Immigration has not met collectively to discuss and deliberate in the cases coming before it. [Citation omitted]

Individual action by members of a board plainly renders nugatory the purpose of its constitution as a Board. The Legislature organized the Board of Commissioners precisely in order that they should deliberate collectively and in order that their views and Ideas should be exchanged and examined before reaching a conclusion (See Ryan vs. Humphrise, LRA 1915F 1047). This process is of the essence of a board's action, save where otherwise provided by law, and the salutary effects of the rule would be lost were the members to act individually, without benefit of discussion.

The powers and duties of boards and commissions may not be exercised by the individual members separately. Their acts are official only when done by the members convened in sessions, upon a concurrence of at least a majority and with at least a quorum present. [Citation omitted]

Where the action needed is not of the individuals composing a board but of the official body, the members must be together and act in their official capacity, and the action should appear on the records of the board. [Citation omitted]

Where a duty is entrusted to a board, composed of different individuals, that board can act officially only as such, in convened sessions, with the members, or a quorum thereof, present. [Citation omitted] 10 (Emphasis supplied)

The act of Mr. Nituda of reversing the 1962 Decision of the BOC could not hence be considered as the act of the BOC itself.

The pretended act of reversal 0of Mr. Nituda must, therefore, be stricken down and disregarded for having been made in excess of his lawful authority. The 1973 order of Nituda was ineffective to vest any right upon respondent Gatchalian who, it is worth nothing, did not pretend to submit any newly discovered evidence to support their claim to Philippine citizenship already rejected by the 1962 BOC. In essence, Mr. Nituda purported not merely to set aside the 1962 BOC Decision but also the 1967 Decision of this Court in Arocha vs. Vivo.

II

I turn to an examination of the underlying facts which make up the basis of the claim of William Gatchalian to Philippine citizenship. The most striking feature of this claim to Philippine citizenship is that it rests upon a fragile web constructed out of self-serving oral testimony, a total lack of official documentation whether Philippine or foreign, of negative facts and of invocation of presumptions without proof of essential factual premises. Put in summary terms, the claim of William Gatchalian to Philippine citizenship rests upon three (3) premises, to wit:

a. that Santiago Gatchalian was a Philippine citizen;

b. the supposed filiation of Francisco Gatchalian as a legitimate son of Santiago Gatchalian, which leads to the intermediate conclusion that Francisco was a Philippine citizen; and

c. the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian leading to the final conclusion that William Gatchalian is a Philippine citizen.

I respectfully submit that a careful examination of the facts made of record will show that the correctness and factual nature of each of these layered premises are open to very serious doubt, doubts which can only lead to the same conclusion which the BOC reached on 6 July 1962 when it reversed the BSI, that is, that there was failure to prove the Philippine citizenship of William Gatchalian and of his eight (8) alleged uncles, aunts and brother in 1961 when they first arrived in the Philippines.

1. The supposed Philippine citizenship of Santiago Gatchalian must be considered first. Santiago was allegedly born in Binondo, Manila, on 25 July 1905 to Pablo Pacheco and Marciana Gatchalian. The records do not disclose anything about Pablo Pacheco but everyone, including William Gatchalian, assumes that Pablo Pacheco was a Chinese subject and never became a citizen of the Philippine Islands. The basic claim of Santiago was that his mother Marciana Gatchalian was a Philippine citizen and that Marciana was not lawfully married to Pablo Pacheco and that consequently, he (Santiago) was an illegitimate son of Marciana Gatchalian.

The first point that should be made in respect of Santiago's claim was that he had always regarded himself as a Chinese citizen until around 1958 or 1960, that is, when he reached the age of 53 or 55 years. Santiago, by his own testimony, lived the bulk of his adult life in China where he went in 1924 at age 19 and where he stayed for about 13 years returning to the Philippines for the first time in 1937. He returned in the same year to China, stayed there for another nine (9) years, and then came back to the Philippines again in 1946. He once more left the Philippines for China on 14 April 1947 and returned on 14 June 1947. Upon his second return to the Philippines in 1946, he documented himself as a Chinese national: he was holder of ICR No. 7501 dated 3 May 1946. He continued to be documented as such, the record showing that he was also holder of an ACR No. A-219003 dated 13 January 1951. Santiago, again by his own statement, married in China a Chinese woman. This Chinese wife, however, Santiago never brought or attempted to bring to the Philippines and she allegedly died in China in 1951, or four (4) years after Santiago had permanently returned to the Philippines.

In 1958, when he was 53 years of age, Santiago obtained a residence certificate where for the first time he described himself as a Filipino. It was also only in 1960, that is, when Santiago was 55 years of age, that he filed a petition for cancellation of his ACR obviously upon the theory that he had always been a Philippine citizen. It was at the hearing of his petition for cancellation of his ACR that Santiago made his oral statements concerning the supposed circumstances of his birth, parentage and marriage. Santiago's petition to cancel his ACR was apparently made in preparation for efforts to bring in, the succeeding year, a whole group of persons as his supposed descendants.

The second point that needs to be made in respect of Santiago's claim of citizenship resting on his supposed status as an illegitimate son of a Filipina woman, is that no birth certificate bearing the name of Santiago Gatchalian was ever presented.

Instead, a baptismal certificate bearing the name Santiago Gatchalian was presented showing the name of Marciana Gatchalian, Filipina, as mother, with the name of the father unknown. There was also presented a marriage certificate dated 1936 of Joaquin Pacheco, alleged brother of Santiago Gatchalian, also showing Marciana Gatchalian as mother with the name of the father similarly left blank. These two (2) pieces of paper, together with Santiago's own statements to the Citizenship Evaluation Board as well as the statements of Joaquin Pacheco to the same Board, constituted the sum total of the evidence supporting Santiago's claim to Philippine citizenship and on the basis of which an Order dated 12 July 1960, signed by Felix S. Talabis, Associate Commissioner, granted the petition to cancel Santiago's alien registry.

In so issuing his Order granting cancellation of Santiago's ACR, Commissioner Talabis disregarded Santiago's failure to present a birth certificate, in obvious violation of rules of the Bureau of Immigration which expressly require the submission of a birth certificate, or a certified true copy thereof, in proceedings brought for cancellation of an ACR upon the ground that the petitioner is an illegitimate son of a Filipina mother. 11 It is well-settled that a baptismal certificate is proof only of the administration of baptism to the person named therein, and that such certificate is not proof of anything else and certainly not proof of parentage nor of the status of legitimacy or
illegitimacy
.
12

That Order also casually disregarded a number of other things, one of which was a document dated 1902 signed by Maxima Gatchalian, the mother of Marciana Gatchalian, stating that Maxima —

. . . residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I know of no legal impediment to such marriage. (Emphasis supplied)

Such parental consent indicated that a marriage ceremony would have taken place shortly thereafter as a matter of course; otherwise, the consent would have been totally pointless. Even more importantly, Commissioner Talabis' Order disregarded the testimony of Santiago Gatchalian himself in the same cancellation proceedings that he (Santiago) believed that his parents had been married by the Justice of the Peace of Pasig, Rizal. 13 In his Order, Commissioner Talabis referred to the fact that Santiago Gatchalian had been "interchangeably using his parental and maternal surnames. In school, he was known as Santiago Pacheco (Class Card for 1920-1921, Meisic Manila; Certificates of Completion of Third and Fourth Grades, Meisic Primary School). But in his Special Cedula Certificate No. 676812 dated 17 September 1937, and in tax clearance certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a Communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes Office." At the very least, such use of both paternal and maternal surnames indicated that Santiago was uncertain as to his supposed illegitimacy. In our case law, moreover, the use of a paternal surname may be regarded as an indication of possession of the status of a legitimate or acknowledged natural child. 14

Perhaps the most important aspect of Commissioner Talabis Order granting cancellation of Santiago's ACR, is that such Order failed to give any weight to the presumption in law in favor of marriage, a presumption significantly reinforced by the parental consent given by Maxima Gatchalian to the marriage of her daughter Marciana Gatchalian to one Pablo C. Pacheco. A related presumption is that in favor of the legitimacy of offspring born of a man and woman comporting themselves as husband and wife. 15 I respectfully submit that these presumptions cannot be successfully overthrown by the simple self-serving testimony of Santiago and of his alleged brother Joaquin Pacheco and by the two (2) pieces of paper (the baptismal certificate of Santiago and the marriage certificate of Joaquin Pacheco). It seems relevant to point out that Joaquin Pacheco, too, was unable to present any birth certificate to prove his supposed common parentage with Santiago Gatchalian; Joaquin was allegedly born in 1902, the same year that Maxima Gatchalian gave her consent to the marriage of Marciana Gatchalian and Pablo C. Pacheco.

The third point that needs to be underscored is that Santiago Gatchalian did nothing to try to bring into the Philippines his supposed sons and daughters and grandchildren since 1947, when he returned permanently to the Philippines, and until 1960. The story given by the nine (9) supposed descendants of Santiago when they first arrived in the Philippines was that they had left the People's Republic of China and had gone to Macao in 1952 and there they stayed until they moved to Hongkong in 1958. It should also be noted that the youngest supposed child of Santiago, Benjamin Gatchalian, was said to have been born in China in 1942 and was consequently only five (5) years old when Santiago returned permanently to the Philippines in 1947. In other words, Santiago Gatchalian behaved as if the nine (9) supposed descendants did not exist until 1960 when Commissioner Talabis' Order cancelling Santiago's ACR was issued.

It may also be noted that Santiago's 1951 ACR application mentioned only two (2) children of Santiago: Jose and Elena. In 1961, however, Santiago stated before the immigration investigator that he had a total of five (5) children: Jose, Elena, Francisco, Gloria and Benjamin. Santiago's explanation strongly echoes a common lawyer's excuse for failure to seasonably file some pleading, and, it is respectfully submitted, is equally contrived and unpersuasive; that he had his clerk fill up the ACR; that he gave his clerk four (4) names (not five [5]); that the clerk had simply failed to fill up the ACR correctly. In its 6 July 1962 Decision, the BOC noted that "while the two (2) names listed in [Santiago's] [ACR application] Jose and Elena, bear the same names as two of the [9] applicants, the difference in the ages of said persons compared to the said applicants, casts serious doubts on their Identity." 16

It is suggested in the majority opinion that the question of citizenship of Santiago Gatchalian is a closed matter which cannot be reviewed by this Court; that per the records of the Bureau of Immigration, as of 20 July 1960, Santiago Gatchalian had been declared to be a Filipino citizen and that this forecloses re-opening of that question thirty (30) years later. I must, with respect, disagree with this suggestion. The administrative determination by the Bureau of Immigration as of 20 July 1960 certainly does not constitute res adjudicata that forecloses this Court from examining the supposed Philippine citizenship of Santiago Gatchalian upon which private respondent William Gatchalian seeks to rely. The Court cannot avoid examining the Philippine nationality claimed by Santiago Gatchalian or, more accurately, claimed on his behalf by William Gatchalian, considering that one of the central issues here is the tanability or untenability of the claim of William Gatchalian to Philippine citizenship and hence to entry or admission to the Philippines as such citizen.

2. The second of the three (3) premises noted in the beginning of this section is: that Francisco Gatchalian was the legitimate son of Santiago Gatchalian and therefore followed the supposed Philippine citizenship of Santiago. This premise has in fact two (2) parts: (a) the physical filiation of Francisco Gatchalian as the son of Santiago Gatchalian; and (b) that Santiago Gatchalian was lawfully married to the Chinese mother of Francisco Gatchalian. This premise is remarkable for the total absence of documentary support for either of its two (2) parts. Francisco was born in Amoy, China in 1931, according to Santiago. The sum total of the evidence on this premise consists of Francisco Gatchalian's own statement and that of Santiago. No birth certificate or certified true copy thereof, or comparable documentation under Chinese law, was submitted by either Santiago or by Francisco. No secondary evidence of any kind was submitted. No testimony of a disinterested person was offered.

Santiago Gatchalian claimed to have been married in China in 1926 to a Chinese woman, Chua Gim Tee, out of which marriage Francisco was allegedly born. No documentary proof of such marriage in China, whether primary or secondary, was ever submitted. Neither was there ever presented any proof of the contents of the Chinese law on marriage in 1926 and of compliance with its requirements.

It is firmly settled in our jurisdiction that he who asserts and relies upon the existence of a valid foreign marriage must prove not only the foreign law on marriage and the fact of compliance with the requisites of such law, but also the fact of the marriage itself. In Yao Kee vs. Sy-Gonzales, 17 the issue before the Court was whether the marriage of petitioner Yao Kee to the deceased Sy Kiat in accordance with Chinese law and custom had been adequately proven. In rendering a negative answer, this Court, speaking through Cortes, J., said:

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law and custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory." The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code]. On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca vs. Orato, 7 Phil. 390, 395 (1907)]. The same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages, as determined by Philippine law.

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong vs. Cheong Seng Gee, 43 Phil. 43, 49 (1922). 18 (Emphasis supplied)

In the instant case, there was absolutely no proof other than Santiago's bare assertion that a marriage ceremony between Santiago and Chua Gim Tee had taken place in China in accordance with Chinese law. The contents of the relevant Chinese law on marriage at the time of the supposed marriage, was similarly not shown. Should it be assumed simply that the requirements of the 1926 Chinese law on marriage are identical with the requirements of the Philippine law on marriage, it must be pointed out that neither Santiago nor Francisco Gatchalian submitted proof that any of the requirements of a valid marriage under Philippine law had been complied with.

I respectfully urge, therefore, that the reliance in the majority opinion upon our conflicts rule on marriage embodied in Article 71 of the Civil Code (now Article 26 of the Family Code; then Section 19 of Act No. 3630) is unwarranted. The rule that a foreign marriage valid in accordance with the law of the place where it was performed shall be valid also in the Philippines, cannot begin to operate until after the marriage performed abroad and its compliane with the requirements for validity under the marriage law of the place where performed, are first shown as factual matters. There is, in other words, no factual basis for a presumption that a lawful marriage under Chinese law had taken place in 1926 in China between Santiago Gatchalian and Chua Gim Tee.

It must follow also that Francisco Gatchalian cannot simply rely upon a presumption of legitimacy of offspring of a valid marriage. As far as the record here is concerned, there could well have been no marriage at all in China between Santiago Gatchalian and Chua Gim Tee (just as Santiago had insisted that his father and mother had never married each other) and that consequently Francisco Gatchalian could just as well have followed the nationality of his admittedly Chinese mother.

3. The last premise noted earlier is the supposed filiation of William Gatchalian as a legitimate son of Francisco which resulted in William's following the supposed Philippine citizenship of Francisco Gatchalian. William was, according to Santiago Gatchalian, born in Amoy, China in 1949. Here again, just in the case of Francisco Gatchalian, there is a complete absence of contemporaneous documentary evidence of the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian. 19 The only support ever presented for such alleged filiation consisted of the oral statements of Santiago Gatchalian, Francisco Gatchalian and William Gatchalian. It is difficult to resist the impression that there took place here a pyramiding of oral statements, each resting upon another oral statement and all going back to the supposed bastardy of Santiago, a status suddenly discovered or asserted by Santiago in his 55th year in life. No birth certificate, or comparable documentation under Chinese law, exhibiting the name of William Gatchalian was submitted.

Francisco Gatchalian stated that he had married a Chinese woman, Ong Siu Kiok, in Amoy in 1947 according to Chinese custom. Once again, we must note that there was no proof submitted that a marriage ceremony satisfying the requirements of "Chinese custom" had ever taken place in China between Francisco and Ong Siu Kiok; neither was there any proof that a marriage "according to Chinese custom" was valid and lawful under Chinese law in 1947 and of factual compliance with the requirements of the law and custom in China concerning marriage. 20 Ong Siu Kiok was alleged to have died in Macau and never came to the Philippines. It must then follow, once again, that no presumption of a lawful marriage between Francisco Gatchalian and his alleged Chinese wife can be invoked by William Gatchalian. It follows still further that William Gatchalian cannot invoke any presumption of legitimacy in his own favor. As in the case of his putative father Francisco, William could as well have followed the nationality of his concededly Chinese mother.

One final note: it might be thought that the result I have reached is unduly harsh considering the prolonged physical stay of William Gatchalian in the country. But this Court must apply the law as it is in fact written. I respectfully submit that the appropriate recourse of respondent William Gatchalian, should he feel that he has some humanitarian claim to a right to stay in the Philippines, is to the political departments of Government. Those departments of Government may then consider the wisdom and desirability, in the light of the interests of the country, of legislation permitting the legalization of the entry and stay in the Philippines of respondent William Gatchalian and those similarly situated. Unless and until such legislation is enacted, this Court really has no choice save to apply and enforce our immigration law and regulations and our law on citizenship.

Accordingly, I vote to GRANT the Petition for Certiorari and Prohibition in G.R. Nos. 95122-23, and to SET ASIDE the Resolution/Temporary Restraining Order dated 7 September 1990 issued by respondent Judge Dela Rosa in Civil Case No. 90-5214, as well as the Order of respondent Judge Capulong dated 6 September 1990 in Civil Case No. 3431-V-90; and to RE-AFFIRM that respondent William Gatchalian is not a Philippine citizen.

Melencio-Herrera, Cruz, Paras, Padilla, Regalado, JJ., concur

Separate Opinions

DAVIDE, JR., J., concurring-dissenting opinion:

I can easily agree with the summary of antecedent facts in the ponencia of Mr. Justice Bidin and the reiteration therein of the established doctrine that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases against alleged aliens, and in the process, determine also their citizenship, and that "a mere claim of citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in deportation proceedings." I also agree with the conclusion that the petitioners in G.R. No. 95122-23, the Board of Commissioners and Board of Special Inquiry, hereinafter referred to as the Boards, are quasi-judicial bodies.

However, I cannot go along with the view that the case of William Gatchalian should be treated as an exception to that doctrine and, above all, to the law which vests upon the Court of Appeals exclusive appellate jurisdiction over the Boards. Neither can I have solidarity with his opinion that this Court should, in this instance, rule on the citizenship of Mr. Gatchalian instead of remanding the case to the Regional Trial Court. To grant him these benefits would do violence to the law, liberally stretch the limits of the exceptions or misapply the exceptionary rule, and to unduly pollute the settled doctrine. No fact or circumstance exists to justify the application of the exceptions for the benefit of Mr. Gatchalian. On the contrary, substantial facts exist to render immutable the unqualified application of the law and the doctrine.

To my mind, the questioned acts of the Boards were done absolutely within their quasi-judicial functions. Therefore, the rule laid down in Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25) and Lupangco vs. Court of Appeals (160 SCRA 848) does not apply.

Consequently, pursuant to paragraph 3 of Section 9 of Batas Pambansa Blg. 129, and Our resolutions of 15 September 1987 and 2 April 1990 in G.R. No. 79635 (Commissioner of Customs vs. Court of Tax Appeals, et al.) and G.R. No. 80320 (Commissioner of Internal Revenue vs. Court of Tax Appeals, et al.), respectively, and Our decisions of 16 March 1989, 22 December 1989, and 6 June 1990 in G.R. No. 83578 (Presidential Anti-Dollar Salting Task Force vs. Court of Appeals, et al.), 171 SCRA 348, G.R. No. 86625 (Development Bank of the Philippines vs. Court of Tax Appeals, et al.), 180 SCRA 609, 617, and in G.R. No. L-48113 (Yang vs. Court of Appeals, et al.), respectively, the Gatchalians should have invoked the exclusive appellate jurisdiction of the Court of Appeals for appropriate redress instead of filing petitions for certiorari and prohibition with injunction before the Regional Trial Court of Manila (Civil Case No. 90-54214) and before the Regional Trial Court of Valenzuela, Metro Manila (Civil Case No. 3431-V-90). The trial courts should have dismissed the cases. In issuing the questioned orders, respondents Judge Dela Rosa and Judge Capulong clearly acted without jurisdiction or with grave abuse of discretion.

As to why William Gatchalian filed his petition before the former court and his wife and minor children filed a separate complaint before the latter has not been explained. It is to be noted that he is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage (Annex 12, Counter-Petition). Therefore, he should have filed his petition with the Regional Trial Court of Valenzuela. His wife and minor children are not parties to the case before the Commission on Immigration and Deportation. Their causes of action are based mainly on their claim that the acts of the Boards against William tend to deprive plaintiff mother consortium and connubium and the plaintiffs minors protection and support. At once, the viability of their causes of action is doubtful; however, if indeed they have valid causes of action, they could have been joined as co-plaintiffs in the case filed by William. It appears then that their filing of a separate complaint before another court was part of a strategy to frustrate the proceedings before the Boards. As correctly maintained by the petitioning Boards, we have here a clear case of forum-shopping, especially considering the fact that on September 4, 1990, or two days before the filing of the case before the Valenzuela court the government filed a motion to dismiss the case before the Manila court. Forum-shopping has long been condemned and proscribed. In People vs. Court of Appeals, et al. (101 SCRA 450, 463), promulgated on 28 November 1980, this Court held that a party "should not be allowed to pursue simultaneous remedies in two different forums." In the Resolution of 31 July 1986 in E. Razon Inc., et al. vs. Philippine Port Authority, et al., G.R. No. 75197, this Court held:

The acts of petitioners constitute a clear case of forum-shopping, an act of malpractice that is proscribed and condemned as trifling with the courts and abusing their processes. It is improper conduct that tends to degrade the administration of justice. (See also Buan vs. Lopez, Jr., 145 SCRA 34; Palm Avenue Realty Development Corp. vs. PCGG, 153 SCRA 591; Minister of Natural Resources, et al. vs. Heirs of Orval Hughes, et al., 155 SCRA 566; Limpin vs. IAC, 161 SCRA 98; Collado vs. Hernando, 161 SCRA 639; Villanueva, et al. vs. Adre, et al., 172 SCRA 877; Danville Maritime, Inc. vs. COA, 175 SCRA 717; Crisostomo vs. SEC, 179 SCRA 154; Adlawan vs. Tomol, 179 SCRA 42; and Alonto vs. Memoracion, 185 SCRA 73).

William Gatchalian did not stop in his forum-shopping in the regional trial courts. Under the guise of a counter-petition, he is now before this Court in an active offensive role. This is a very clever, albeit subtle, ploy to bang directly to this Court the issue of his deportation and to divest the Boards of their original jurisdiction thereon. He could have done this at the first instance; he did not. He and his wife and minor children deliberately chose, instead, to separately go to the wrong court, evidently to delay the proceedings before the Boards, which they accomplished when the two judges separately issued orders restraining said Boards from commencing or continuing with any of the proceedings which would lead to the deportation of William Gatchalian (Civil Case No. 90-54214) and from proceeding with the deportation charges against William Gatchalian (Civil Case No. 3431-V-90).

Chua Hiong vs. Deportation Board (96 Phil. 665) cited in the ponencia as another authority which allows William Gatchalian to enjoy the protective mantle of the exceptionary rule affecting the exclusive power of the Commission on Immigration and Deportation to try and hear cases against aliens and in the process also determine their citizenship is either not applicable or is mis-applied. This case laid down the principle that "when the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings. . . . If he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished its investigation of his undesirability. . . ." (emphasis supplied). The word courts should not now be interpreted to mean or to include the regional trial courts because, as stated above, said courts do not have any appellate jurisdiction over the Commission on Immigration and Deportation, the Board of Commissioners and the Board of Special Inquiry. This case was decided in 1955 yet, or twenty-six years before the effectivity of Batas Pambansa Blg. 129.

The condition sine qua non then to an authorized judicial intervention is that the evidence submitted by a respondent is conclusive of his citizenship, or as stated in Co vs. Deportation Board, (78 SCRA 104, 107), the claim of citizenship is so substantial that there are no reasonable grounds for the belief that the claim is correct.

The facts before this Court do not constitute, or even show, a conclusive or substantial evidence that William Gatchalian is a Filipino citizen. On the contrary, very serious doubts surround such a claim from the beginning. His initial entry into the Philippines was made possible through a Certificate of Identity (as Filipino) which was issued on the basis of a forged cablegram by the then Secretary of Foreign Affairs. Then on 6 July 1962 the then new Board of Commissioners promulgated a written decision in I.C. Cases Nos. 61-2108-C to 61-2116-C inclusive (Application for admission as Philippine citizens of Jose, Elena, Benjamin, Juan, Pedro, Gloria, Francisco, William and Johnson, all surnamed Gatchalian) reversing the decision of the Board of Special Inquiry No. 1 of 6 July 1961 and ordering the exclusion of William Gatchalian and the others as aliens not properly documented. Accordingly, a warrant of exclusion, also dated 6 July 1962, was issued by the Commissioners commanding the deportation officer to exclude William Gatchalian, and others, and to cause their removal from the country on the first available transportation in accordance with law to the port of the country of which they were nationals. The pertinent portion of the Decision reads as follows:

The claim to Philippine citizenship of above-named applicants is based on the citizenship of one Santiago Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order, dated July 12, 1960. It is alleged that applicants JOSE GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and BENJAMIN GATCHALIAN are the legitimate children of Santiago Gatchalian with one Chiu Gim Tee. Except for the self-serving testimonies of Santiago Gatchalian and his alleged children, there has not been submitted any evidence of Santiago Gatchalian's marriage to Chiu Gim Tee and the birth of the alleged children of the couple. The personal records of Santiago Gatchalian on file with this office do not reflect the names of applicants as his children, and while two names listed in his Form 1 (ACR application), Jose and Elena, bear the same name as two of herein applicants, the difference in the ages of said applicants, casts serious doubt on their identity. Apropos, the applicants JOSE GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and BENJAMIN GATCHALIAN, not having satisfactorily proved as the children of Santiago Gatchalian, determination of the citizenship of the other applicants, JUAN GATCHALIAN, PEDRO GATCHALIAN and JOHNSON GATCHALIAN, whose right to Filipino citizenship are merely drawn from their fathers, Jose Gatchalian and Francisco Gatchalian, is unnecessary. (Decision, Annex "E" of Petition).

Looking back to the case of Santiago, William's alleged grandfather, I cannot find sufficient credible evidence to support his claim of Filipino citizenship. For a long time before 20 July 1960 he considered himself a Chinese citizen. The "conclusion" of the Bureau of Immigration that Santiago is a Filipino citizen is based on totally questionable and insufficient evidence which cannot inspire belief. The Order itself, signed by Associate Commissioner Felix Talabis, supports this conclusion. It reads in full as follows:

This is a petition for the cancellation of an alien registry of SANTIAGO GATCHALIAN, registered as Chinese and holder of ACR No. A-219003 issued at Manila on 13 February 1951 and ICR No. 7501 dated 3 May 1946. He is alleged to be the son of Filipino parents who were not lawfully married.

It is alleged that the petitioner was born in Binondo, Manila, on 25 July 1905, to Pablo Pacheco and Marciana Gatchalian. It is noted that in his application for alien registration filed with this Office on 13 January 1951, Santiago Gatchalian stated that his deceased parents were Pablo Pacheco and Marciana. He was identified by his only brother, Joaquin Pacheco, who insisted that he and petitioner are illegitimate. It is true that, on record, there is a certificate signed on 26 October 1902 by Maxima Gatchalian, their maternal grandmother, giving consent to the marriage of Marciana Gatchalian to Pablo Pacheco (Exh. B), but Joaquin said that his parents did not actually get married. In proof of this, the baptismal record of the petitioner expressly states that Santiago Gatchalian was born on 25 July 1905 and baptized on 6 October 1905, being the son of Marciana Gatchalian, "filipina", and an unknown father (verbatim copy dated 22 June 1907, Parish Priest of Binondo, Manila).

The petitioner, apparently not completely certain about his civil status, has been interchangeably using his paternal and maternal surnames. In school he was known as Santiago Pacheco (Class card for 1920-21, Meisic, Manila; Certificates of completion of third and fourth grades, Meisic Primary School); but in his residence certificate dated 17 September 1937, and in Tax Clearance Certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes office.

Considering, however, the positive assertion by his elder brother who is better informed about their origin, the incontestable entry in his baptismal record that he is illegitimate and the entry in the marriage contract of his elder brother wherein the father's name is omitted and the mother, Marciana Gatchalian, is described as Filipina (marriage contract dated 29 November 1936) there is sufficient evidence to establish that Santiago Gatchalian is really Filipino at birth, being the legitimate child of a Filipino woman.

WHEREFORE, the herein petition to cancel his alien registration is granted, petitioner shall henceforth be shown in the records of this office as a citizen of the Philippines and the issuance to him of the appropriate Identification certificate showing his correct status is hereby authorized. (Order of 12 July 1960, Annex "1" of Comment with Counter-Petition).

As to his alleged marriage to Chu Gim Tee, and their five children, we only have his self-selling oral testimony, thus:

Q What is the name of your wife?

A Her name is Chu Gim Tee.

Q Is she still alive?

A No, she died in 1951, in Amoy.

Q Do you have children with her, if so, mention their names, ages and sexes?

A Yes. I have five children, all of them alive and they are as follows:

Jose Gatchalian, born on Jan. 2, 1927 in Amoy; Gloria Gatchalian, born February 20, 1929 in Amoy; Francisco Gatchalian, born on March 3, 1931 in Amoy; Elena Gatchalian, born on April 4, 1933 in Amoy; Benjamin Gatchalian, born on 31 March 1942 in Amoy.

Q Where are they living now?

A All of them are now living in Macao, with my sister-in-law by the name of Chu Lam Tee. (p. 4, Transcript of the proceedings before the Citizen Evaluation Board on 12 February 1960, Annex "2" of Comment with Counter-Petition).

If indeed Santiago's parents, Pablo Pacheco and Marciana Gatchalian, were married, what was his reason for insisting, through his brother Joaquin, that he, is an illegitimate son? The only possible reason is that Pablo Pacheco is a Chinese citizen, in which case Santiago would follow the citizenship of Marciana, a "filipina." But to give full faith and credit to the oral insistence of illegitimacy is to do violence to the presumptions of validity of marriage, the indissolubility of the marriage bonds and the legitimacy of children. (Art. 220, Civil Code). These are among the presumptions which the ponencia precisely applied when it rejected the petitioners' claim that Santiago failed to establish his claimed marriage to Chu Gim Tee and Francisco's (father of William) claimed marriage to Ong Chiu Kiok, both of which were allegedly celebrated abroad. I cannot find any valid justification why these presumptions should be liberally applied in favor of claimed marriages allegedly celebrated abroad but denied to purported marriages celebrated in the Philippines.

Interestingly, Santiago used the surname Pacheco during such proceedings and when he testified, he gave his name as Santiago Gatchalian Pacheco. This is an incontrovertible proof that he recognized the legitimate union of his father and mother.

On 18 February 1960, Santiago was recalled to be confronted re his claim as to the number of his children; he testified thus:

Q In your testimony on February 12, this year, you named as your children the following: Jose, Gloria, Francisco, Elena and Benjamin, all born in Amoy, arranged according to the order of their ages. However, in your Form 1 when you secured your ACR in 1951, you mentioned only Jose Gatchalian and Elena Gatchalian. Why, what is the reason why in this form that you filled up in 1951, you mentioned only Jose and Elena?

A That form I am not the one who filled it because that is not my handwriting. It is the handwriting of my broker or the clerk of my broker. However, when they prepared that I mentioned my children named Jose, Gloria, Francisco, Elena in a piece of paper which I gave to him, except Benjamin.

Q Why did you not mention Benjamin in the list?

A Because he was not yet baptized then. (Transcript, p. 7, Annex "2" of Comment with Counter-Petition).

The explanation is very flimsy and does not deserve the respect of a passing glance.

There is no showing that Gatchalian took any immediate definite positive step against the 6 July 1962 decision and the warrant of exclusion.

It was only sometime in 1973, or eleven years after, that he and others covered by the warrant of expulsion filed a motion for re-hearing with the Board of Special Inquiry. There has been no explanation for the unreasonable delay in the filing of the motion. It may be surmised that it was due to his minority, considering that he was allegedly only twelve years old when he arrived in Manila from Hongkong on 27 June 1961. But, such minority was no obstacle to the filing of any remedial action for and in his behalf.

The action taken by and the recommendation of the Board of Special Inquiry of 14 March 1973 to the then Acting Commissioner Victor Nituda for the reversal of the July 6, 1962 decision of the Board of Commissioners were not only highly anomalous, irregular and improper, it was done without any semblance of authority. The Board of Special Inquiry did not have the power to review, modify or reverse a Decision of the Board of Commissioners rendered about eleven years earlier. Then Acting Commissioner Victor Nituda, acting alone, did not likewise have the power or authority to approve the recommendation of said Board, to revive and/or reaffirm the July 6, 1961 decision of the Board of Special Inquiry, to reverse, and nullify, the Decision of 6 July 1962 of the Board of Commissioners, and to order the admission of William Gatchalian as a Filipino citizen. Pursuant to Sec. 26 (b) of C.A. No. 613, as amended (The Philippine Immigration Act of 1940), only the Board of Commissioners can act on the recommendation, if at all it was legally and validly done. The Board of Commissioners is composed of the Commissioner of Immigration and the two Deputy Commissioners. In the absence of any member of the Board, the Department Head shall designate an officer or employee in the Bureau of Immigration to serve as member thereof. In any case coming before it, the decision of any two members shall prevail. (Sec. 8, C.A. No. 613 as amended). The Department Head referred to is the Secretary of Justice since the Commission is, for administrative purposes, under the supervision and control of the Department of Justice.

The decision then of Acting Commissioner Nituda was void and invalid ab initio. In view thereof, the rationalization in the ponencia that the issue could be re-opened since the decision of the Board of Commissioners of 6 July 1962 did not constitute res judicata is irrelevant. But even if it is to be conceded that the 6 July 1962 decision did not constitute res judicata, I find it both strange and illogical to give full faith and credit to the unilateral action of Mr. Nituda and to use it to bar the Boards from exercising its power and jurisdiction over William Gatchalian.

Assuming that indeed William is the grandson of Santiago, I find it rather strange why Santiago did not mention him in his testimony before the Citizenship Evaluation Board. At that time William was already eleven years old. It is logical to presume that the proceeding initiated by Santiago was principally for the benefit of his alleged children and grandchildren. It was, as subsequent events proved, intended to prepare the legal basis for their entry into the country as Filipino citizens. Thus, eleven months after he obtained a favorable decision from the Board, and on two successive dates, his alleged children and grandchildren entered the country. On 25 June 1961 his alleged children Jose, Elena, Benjamin, and his alleged grandchildren Pedro and Juan arrived from Hongkong. On 27 June 1961, his alleged daughter Gloria and son Francisco with his alleged children William and Johnson also arrived from Hongkong. (pp. 4-5, Petition).

That he has continuously resided in the Philippines since 1961; he is married to Ting Dee Hua on July 1, 1973, and his marriage contract shows that he is a Filipino citizen; he holds passports and earlier passports as a Filipino; he is a registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage; he is engaged in business in the Philippines since 1973, and is a director/officer of the International Polymer Corp. and Ropeman International Corp. as a Filipino, and that the companies he runs and in which he has a controlling investment provided a livelihood to 4,000 employees and approximately 25,000 dependents; he is a taxpayer; and he has continuously enjoyed the status of Filipino citizenship, discharged his responsibility as such until petitioning Boards initiated the deportation proceedings against him, are not of any help to William Gatchalian. For, they neither confer nor strengthen his claim of Filipino citizenship since they are all rooted on the illegal and void decision of then Acting Commissioner Victor Nituda of 15 March 1973. A decision which is void and invalid ab initio cannot be a source of valid acts. Neither can such substantive infirmity be cured by salutary acts that tend to confirm the status conferred by the void decision.

In the light of the foregoing, it follows that the warrant of exclusion issued against William Gatchalian pursuant to and by virtue of the 6 July 1962 Decision of the Board of Commissioners subsists and remains valid and enforceable.

I disagree with the view advanced in the ponencia that the State can no longer enforce the warrant of exclusion because it is already barred by prescription considering that Section 37 (b) of the Immigration Act states that deportation "shall not be effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation arises."

Said paragraph (b) of Section 37 reads in full as follows:

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 paragraph (a) of this section at any time after entry, but shall not be effected under any other clause unless the arrest in the deportation proceedings is made within five years after the cause of deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court or judge thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported. (As amended by Sec. 13, R.A. No. 503). (Emphasis supplied).

Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of paragraph (a) of the Section. In respect to clauses 2, 7, 8, 11 and 12, the limitation does not apply. These clauses read as follows:

(2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;

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(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non- immigrant;

(8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government, or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines;

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(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may be brought against him;

(12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four Hundred and Seventy-Three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship;

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Mr. Gatchalian is covered by clause (2); besides, the warrant for his exclusion was issued within a period of five years following his entry.

Lam Shee vs. Bengzon (93 Phil. 1065) is not applicable to Mr. Gatchalian. In issue in that case was the deportation of a minor whose mother fraudulently entered the Philippines by using the name of a resident Chinese merchant who is not her lawful husband but against whom no deportation proceedings was initiated within five years following her entry. Said mother did in fact acquire permanent residence status. Furthermore, the minor's mother never claimed to be a Filipino citizen.

IN VIEW OF ALL THE FOREGOING, I vote to GRANT the petition in G.R. Nos. 95122-23, SET ASIDE the questioned orders of respondents Judge Joselito Dela Rosa and Judge Teresita Dizon Capulong as having been issued beyond their jurisdiction, ORDER the DISMISSAL of Civil Case Nos. 90-54214 of the Regional Trial Court of Manila and 3431-V-90 of the Regional Trial Court of Valenzuela, Metro Manila and to DISMISS for lack of merit the COUNTER-PETITION.

FELICIANO, J., dissenting:

I regret I am unable to join the opinion written by my distinguished brother in the Court, Mr. Justice A.A. Bidin, and I, therefore, undertake to submit this separate opinion.

For convenience, the following is a precis of the matters discussed in detail below.

1. I agree that the Warrant of Arrest dated 14 August 1990 is defective in its language. The surrounding facts, however, make quite clear that an amended warrant of arrest or mission order, or a new one correctly worded, may be issued by Immigration Commissioner Domingo for the purpose of carrying out an existing and valid Warrant of Exclusion covering respondent William Gatchalian and his co-applicants for admission.

2. The 6 July 1962 Decision of the Board of Commissioners ("BOC") and Warrant of Exclusion remain valid and effective and enforceable against respondent William Gatchalian, and his co-applicants for that matter. That Decision reversed a 6 July 1961 decision of the Board of Special Inquiry ("BSI") and held that respondent William Gatchalian and his co-applicants failed to subtantiate and prove their claim to Philippine citizenship in 1961. Respondent William Gatchalian does not claim Philippine citizenship by any mode of entitlement subsequent to his application for entry as a citizen of the Philippines in 1961, i.e., by any act or circumstance subsequent to his birth and supposed filiation as a legitimate son of Francisco Gatchalian, also a supposed citizen of the Philippines.

3. In its Decision in Arocha vs. Vivo, 1 the Supreme Court upheld the validity and legal effect of the 6 July 1962 Decision of the BOC and the Warrant of Exclusion not only against Pedro Gatchalian, the particular Gatchalian who was taken into custody by immigration authorities in 1965, but also against Pedro's co-applicants, which include respondent William Gatchalian. The validity of the claim to Philippine citizenship by Pedro Gatchalian, as a supposed descendant of Santiago Gatchalian, allegedly a natural born citizen of the Philippines, was directly placed in issue in the 1961-1962 proceedings before the BSI and the BOC, and by the Solicitor General and Pedro Gatchalian in Arocha vs. Vivo (supra). In upholding the validity and legal effect of the 6 July 1962 BOC Decision that the Gatchalian applicants had not substantiated their claim to Philippine citizenship, this Court in effect ruled that the Gatchalian applicants were not Philippine citizens, whatever their true nationality might be.

4. Should this Court now determine to examine once more the claim to Philippine citizenship of respondent William Gatchalian, a detailed examination of the facts, including the supposed status of Santiago Gatchalian as a natural born Philippine citizenship, shows that those claims to Philippine citizenship were indeed not proven by respondent William Gatchalian and his co-applicants. Since respondent William Gatchalian does not claim to have been naturalized as a Philippine citizen after rendition of the 6 July 1962 BOC Decision, he must accordingly be held to be not a Philippine citizen.

5. Should the legal results thus reached seem harsh to some, I respectfully submit that the remedy lies not with this Court which is charged with the application of the law as it is in fact written, but with the political branches of the Government. It is those departments of Government which must consider the desirability and wisdom of enacting legislation providing for the legalization of the entry and stay of aliens who may be in the same situation as respondent William Gatchalian and his co-applicants.

I

1. Petitioner argues that respondent William Gatchalian's arrest follows as a matter of "consequence" of the Warrant of Exclusion issued by the BOC on 6 July 1962. This is opposed by respondent Gatchalian upon the ground that the Mission Order or Warrant of Arrest does not mention that it is issued pursuant to a final order of deportation or Warrant of Exclusion.

The Mission Order or Warrant of Arrest dated 14 August 1990 issued by petitioner Commissioner Domingo, CID, reads in part as follows:

Intelligence Officers/Agents: All Teams

Team No.

Subject: William, Juan, Francisco, Jose, Benjamin, Jonathan, Pedro, Gloria, Elena, all surnamed Gatchalian

Address: Bgy. Canumay, Valenzuela, M.M.

x x-------------------------------------------------------------------------------x x

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Section 5, for violation of the Immigration Act, Section 37, para. a; Secs. 45 and 46 Administrative Code;

2. Make a warrantless search as an incident to a lawful arrest under Rule 125, Section 12.

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel;

4. Prepare and file an affidavit of arrest with the Special Prosecutor's Office and, in case of a search, prepare and file an inventory of the properties seized, verified under oath following Office Memorandum Order No. 45

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The above Mission Order merely referred to Section 37 (a) of the Immigration Act, as amended, and to Sections 45 and 46 of the Administrative Code (should be Immigration Law), and that its wording suggests that the arrest is sought to be carried out for the purpose of carrying out a preliminary investigation or custodial interrogation rather than for the purpose of enforcing a final order of deportation or warrant of exclusion. More specifically, the Mission Order failed to mention the 6 July 1962 BOC Decision and Warrant of Exclusion. At the same time, there is no gainsaying the fact that the 6 July 1962 BOC Decision and Warrant of Exclusion do exist and became final and, as discussed in detail below, remain valid and effective.

It should be noted also that by 6 September 1990, Special Prosecutor Mabolo had filed a Manifestation or Motion before the Bureau of Immigration explicitly referring to the Warrant of Exclusion issued against respondent William Gatchalian and his original co-applicants for admission in 1961, which had been passed upon in Arocha vs. Vivo (supra), and argued that there was, therefore, no longer any need to adduce evidence in support of the charges against respondent William Gatchalian.

Thus it appears to me that the Warrant of Arrest or Mission Order dated 15 August 1990, ineptly worded as it is, may be amended so as to refer explicitly to the mentioned Warrant of Exclusion, or a new warrant of arrest or mission order issued similarly explicitly referring to the Warrant of Exclusion.

2. It is indispensably necessary to refer to the Warrant of Exclusion of 6 July 1962 which read as follows:

WHEREAS, upon review, motu proprio of the proceedings had on the application for admission as Philippine citizens of JOSE GATCHALIAN, ELENA GATCHALIAN, BENJAMIN GATCHALIAN, JUAN GATCHALIAN, PEDRO GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, WILLIAM GATCHALIAN, and JOHNSON GATCHALIAN, the Board of Commissioners found them not entitled to admission as Filipinos in a Decision, dated July 6, 1962, and ordered their exclusion as persons not properly documented;

AND WHEREAS, the Decision of the Board of Commissioners, dated 6 July 1962, ordering the exclusion of above-named applicants, has now become final and executory.

NOW THEREFORE, by virtue of the authority vested in the undersigned by law, you are hereby ordered to exclude the aforenamed individuals and cause their removal from this country to the port where they came or to the port of the country of which they are nationals, on the first available transportation, in accordance with law. (Emphasis supplied)

It should be noted that respondent William Gatchalian was a party to the 1961-1962 proceedings before the Bureau of Immigration which proceedings culminated in the 6 July 1962 Decision of the BOC and the aforequoted Warrant of Exclusion.

It is, however, insisted by respondent William Gatchalian that the Warrant of Exclusion may no longer be executed or implemented as against him in view of the passage of approximately twenty-eight (28) years since the issuance of such Warrant. Respondent Gatchalian here relies upon Section 37 (b) of the Immigration Act which states that:

Sec. 37 (b). Deportation may be effected under clauses 2, 3, 7, 8, 11 and 12 of the Par. (a) of this Section at any time after entry, but shall not be effected under any other clauses unless the arrest in the deportation proceedings is made within five (5) years after the cause for deportation arises . . . (Emphasis supplied)

Examination of the above quoted Section 37 (b) shows that the five (5) year-limitation is applicable only where deportation is sought to be effected under clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be effected under clauses 2, 7, 8 11 and 12 of Section 37 (a), no period of limitation is applicable; and that, to the contrary, deportation or exclusion may be effected "at any time after entry."

Examination of contemporaneous facts shows that the Government has sought to effect the exclusion and deportation of respondent William Gatchalian upon the ground that he had entered the country as a citizen of the Philippines when he was not lawfully admissible as such at the time of entry under Section 37 (a) (2), since the BOC had held him and the other Gatchalians there involved as not properly documented for admission, under Section 29 (a) (17) of the Immigration Act, as amended. On 7 July 1990, the Acting Director of the National Bureau of Investigation ("NBI") initiated the proceedings immediately before us by writing to the Secretary of Justice recommending that respondent William Gatchalian, and his co-applicants covered by the Warrant of Exclusion dated 6 July 1962, be charged with: "Violation of Section 37 (a), paragraphs 1 and 2, in relation to Section 45 (c), (d) and (e) of Commonwealth Act 613 as amended, also known as the Immigration Act of 1940." The Secretary of Justice endorsed this recommendation to Immigration Commissioner Domingo for investigation and immediate action. On 20 August 1990, Special Prosecutor Mabolo filed a charge sheet against respondent William Gatchalian which specified the following charges:

The respondent is an alien national who unlawfully gained entry into the Philippines without valid travel document in violation of the Immigration Act; Sec. 37 par. a, sub pars. (1) and (2);

That respondent being an alien misrepresented himself as Philippine Citizen by false statements and fraudulent documents in violation of the Immigration Act, Sec. 45, par. (c), (d) and (e).

That respondent being an alien national is an undocumented person classified as excludable under the Immigration Act, Sec. 29 (a) sub par. (17).

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(Emphasis supplied)

Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides as follows:

Sec. 37 (a). The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.

(1) Any alien who enters the Philippines after the effective date of this act by means of false and misleading statements or without inspection and admission by the Immigration authorities at a designated port of entry or at any place other than at a designated port of entry; (As amended by Republic Act No. 503).

(2) An alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry.

xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (2), quoted above, relates back to Section 29 (a) of the Immigration Act, as amended, which lists the classes of alien excluded from entry in the Philippines, as follows:

Sec. 29. (a). The following classes of aliens shall be excluded from entry into the Philippines;

xxx xxx xxx

(17) Persons not properly documented for admission as may be required under the provisions of this act. (Emphasis supplied)

Thus, in the instant case, the net result is that no time limitation is applicable in respect of the carrying out of the Warrant of Exclusion issued in 1962.

A little reflection suffices to show why this must be so. What was involved in 1961 when the supposed children and grandchildren of Santiago Gatchalian first descended upon the Philippines, was the right of a person claiming to be a Philippine citizen to enter for the first time and reside in the Philippines. On the part of the Government, what was at stake was the right to exclude from the country persons who had claimed the right to enter the country as Philippine citizens but who had failed to substantiate such claimed status. Aliens seeking entry into the Philippines do not acquire the right to be admitted into the country by the simple passage of time. Exclusion of persons found not to be entitled to admission as Philippine citizens, must be distinguished from the deportation of aliens, who, after having been initially lawfully admitted into the Philippines, committed acts which rendered them liable to deportation.

Normally, aliens excluded are immediately sent back to their country of origin. 2 This is so in cases where the alien has not yet gained a foothold into the country and is still seeking physical admittance. However, when the alien had already physically gained entry but such entry is later found unlawful or devoid of legal basis, the alien can be excluded any time after it is found that he was not lawfully admissible at the time of his entry. Technically, the alien in this case is being excluded; however, the rules on deportation can be made to apply to him in view of the fact that the cause for his exclusion is discovered only after he had gained physical entry.

It is worth noting at this point that in Arocha vs. Vivo (supra), this Court upheld the 6 July 1962 Order of the BOC and the application of the Warrant of Exclusion, in respect of Pedro Gatchalian, even though more than five (5) years had elapsed by the time the Court's Decision was promulgated on 26 October 1967.

Though respondent William Gatchalian is physically inside the country, it is the government's basic position that he was never lawfully admitted into the country, having failed to prove his claim of Philippine citizenship, and hence the Warrant of Exclusion of 6 July 1962, or a new Warrant of Exclusion for that matter, may be executed "at any time" under Section 37 (b). It is the correctness of that basic position which must be ascertained and in that ascertainment, the mere passage of time is quite peripheral in relevance considering the express language of Section 37 (b).

My distinguished brother, Bidin, J., finally invokes Act No. 3326, and on the basis of Section 1 thereof, would hold that where the arrest for purpose of deportation is made more than five (5) years after the cause for deportation arose, the prescriptive period of eight (8) years should be applied. Act No. 3326 which took effect on 4 December 1926, establishes prescriptive periods in respect of criminal prosecutions for violations penalized not by the Revised Penal Code but rather by special acts which do not otherwise establish a period of prescription. In other words, Act No. 3326 establishes a statute of limitations for the institution of criminal proceedings. It is, however, quite settled that deportation proceedings cannot be assimilated to criminal prosecutions for violation either of the Revised Penal Code or of special statutes. 3 Moreover, Act No. 3326 purports to be applicable only where the special act itself has not established an applicable statute of limitations for criminal proceedings. It cannot, however, be said that Article 37 (b) of the Immigration Act (quoted earlier) has not established an applicable statute of limitations. For, precisely, Section 37 (b) of the Immigration Act states that deportation may be effected under certain clauses of Section 37 (a) "at any time after entry." One of those instances is, precisely, deportation upon the ground specified in Clause (2) of 37 (a) which relates to "any alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry." Thus, the Immigration Act, far from failing to specify a prescriptive period for deportation under Section 37 (a) (2), expressly authorizes deportation under such ground "at any time after entry." It is, thus, very difficult to see how Act No. 3326 could apply at all to the instant case.

Finally, we must recall once more that what is actually involved in the case at bar is exclusion, not deportation.

3. It is urged by the government that Arocha vs. Vivo (supra) has already resolved the claim to Philippine citizenship of respondent William Gatchalian adversely to him and that such ruling constitutes res judicata. Upon the other hand, respondent William Gatchalian vehemently argues that neither the 6 July 1962 BOC's Decision nor Arocha definitely settled the question of his citizenship.

My respectful submission is that respondent William Gatchalian's argument constitutes a highly selective reading of both the BOC Decision and the Decision in Arocha Written by J.B.L. Reyes, J. for a unanimous court. The 6 July 1962 Decision of the BOC, in its dispositive portion, reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Board finds and hereby holds that the applicants [Jose Gatchalian, Elena Gatchalian, Benjamin Gatchalian, Juan Gatchalian, Pedro Gatchalian, Gloria Gatchalian, Francisco Gatchalian, William Gatchalian and Johnson Gatchalian] herein have not satisfactorily proved their claim to Philippine citizenship and therefore the Decision of the Board of Special Inquiry, dated July 6, 1961 admitting them as Filipinos is hereby reversed, and said applicants should be, as they are hereby ordered excluded as persons not properly documented.

SO ORDERED. (Emphasis supplied)

Since respondent William Gatchalian and his co-applicants in 1961 claimed the right to enter the country as Philippine citizens, determination of their right to enter the Philippines thus indispensably involved the resolution of their claim to Philippine citizenship. In other words, the determination of that citizenship in the instant case was not a mere incident of the case; it was rather the central and indeed the only issue that had to be resolved by the BOC. Review of the 1961 proceedings before the BSI shows that the sole issue before it was the supposed Philippine citizenship of the applicants. Thus, the very same issue of claimed Philippine citizenship was resolved by the BOC when it reversed the 6 July 1961 decision of the BSI. This case may be distinguished from other types of cases, e.g., applications for public utility franchises, petitions for change of name, applications for registration as voter, filing of certificates of candidacy for an elective position, etc., where the central issue is not citizenship although resolution of that issue requires a determination of the citizenship of the applicant, candidate or petitioner.

The ruling of the BOC that respondent William Gatchalian and his co-applicants for admission as Philippine citizens had not satisfactorily proved their claim to Philippine citizenship, can only be reasonably read as a holding that respondent William Gatchalian and his co-applicants were not Philippine citizens, whatever their true nationality or nationalities might be. Thus, it appears to be merely semantic play to argue, as respondent William Gatchalian argues, that the 1962 BOC Decision did not categorically hold him to be an "alien" and that the BOC had merely held him and his co-applicants as "not properly documented." The phrase "not properly documented" was strictly and technically correct. For William Gatchalian and his co-applicants had presented themselves as Philippine citizens and as such entitled to admission into the country. Since the BOC rejected their claims to Philippine citizenship, William Gatchalian and his co-applicants were non-Filipinos "not properly documented for admission" under Section 29 (a) (17), Immigration Act as amended.

4. In Arocha vs. Vivo (supra), the Supreme Court had before it the following items:

1. The 6 July 1961 Decision of the BSI which allowed the entry of respondent Gatchalian and his co-applicants as citizens of the Philippines;

2. A split BOC Decision approving the 6 July 1961 BSI decision, which had been "noted" by two (2) Commissioners but rejected by Commissioner Galang on 14 and 26 July 1961 and 21 August 1961, respectively;

3. The 6 July 1962 Decision of the BOC in which the BOC had reviewed motu proprio the Gatchalian proceedings before the BSI and reversed the BSI decision of 6 July 1961;

4. The Warrant of Exclusion dated 6 July 1962 issued pursuant to the 6 July 1962 Decision of the BOC; and

5. A decision of the Manila Court of First Instance dated 31 July 1965, rendered in a habeas corpus proceeding brought to effect the release of Pedro Gatchalian who had been taken into custody by immigration officials pursuant to the 6 July 1962 Warrant of Exclusion.

The Court of First Instance ("CFI") decision ordered Pedro Gatchalian's release upon the ground that the 6 July 1962 BOC Decision had been issued beyond the one (1) year period for review of the BSI decision of 6 July 1961. The CFI decision was reversed and nullified by the Supreme Court.

The Supreme Court held that the BOC Decision of 6 July 1962 had not been antedated and that it was valid and effective to reverse and nullify the BSI order granting admission to the Gatchalians as citizens of the Philippines.

The Court also held that the split BOC decision of July-August 1961 did not operate to confirm and render final the BSI decision of 6 July 1961, the split decision being null and void because it had not been rendered by the BOC as a body.

The Court further rejected Pedro Gatchalian's argument that he was not bound by the 6 July 1962 BOC Decision:

It is argued for the appellee that the minutes in Exh. 5-A refer only to the cases of Gloria, Francisco and Benjamin Gatchalian. But the designation of the case is "Gloria Gatchalian, et al." No reason is shown why the case of these three should be considered and voted upon separately, considering that the claims to citizenship and entry of all were based on the same circumstances, applicants being the descendants of one Santiago Gatchalian, a Filipino and that all their applications for entry were in fact jointly resolved by the Board of Inquiry in one single decision (Annex 1, petition, G.R. No. L-24844). 4

I respectfully submit that the above-quoted ruling in Arocha disposes of the contention here being made by respondent William Gatchalian that he is not bound by the Decision in Arocha vs. Vivo, Arocha held that the 1962 BOC Decision was valid and effective and William was certainly one of the applicants for admission in the proceedings which began in 1961 before the BSI.

Respondent William Gatchalian contends that the Court in Arocha did not find him nor any of his co-applicants to be aliens and that all the Court did was to hold that the 6 July 1962 Board of Commissioners decision had not been antedated. This contention cannot be taken seriously. As has already been pointed out several times, the 1962 Board of Commissioners decision held that William Gatchalian and his eight (8) other co-applicants for admission had not proved their claim to Philippine citizenship; not being Filipinos, they must have been aliens, to be excluded as persons not properly documented. Moreover, a review of the Rollo in Arocha vs. Vivo shows that the parties there had expressly raised the issue of the citizenship of Pedro Gatchalian in their pleadings. The Solicitor General, in his fifth assignment of error, argued that the Court of First Instance had erred in declaring Pedro Gatchalian a Filipino, and simultaneously urged that the 6 July 1962 decision of the Board of Commissioners was quite correct. Pedro Gatchalian, upon the other hand, contended that precisely because he was a Filipino, the Bureau of Immigration had no jurisdiction to exclude him. 5

The Court also said in Arocha:

Finally, it is well to note that appellee did not traverse the allegation of appellant Commissioners in their return to the writ of Habeas Corpus that appellee Pedro Gatchalian gained entry on the strength of a forged cablegram, purportedly signed by the former Secretary of Foreign Affairs Felixberto Serrano, and apparently authorizing appellee's documentation as a Filipino (par. 3[a] of Return, C.F.I. Rec., pp. 15-16). Such failure to deny imports admission of its truth by the appellee, establishes that his entry was irregular. Neither has he appealed the decision of the Commissioners of Immigration to the Department Head. 6

Since the physical entry of Pedro Gatchalian was effected simultaneously with that of Francisco and William Gatchalian, on exactly the same basis and on the strength of the same forged cablegram allegedly from then Secretary of Foreign Affairs Felixberto Serrano, it must follow that the entry of Francisco and William Gatchalian was similarly irregular. The applications for admission of the nine (9) Gatchalians were all jointly resolved by the BSI on 6 July 1961 on the identical basis that they were all descendants of Santiago Gatchalian, a supposed natural born Philippine citizen.

5. The purported reversal of the 1962 BOC Decision by Commissioner Nituda in 1973, cannot be given any effect. A close examination of the same reveals that such purported reversal was highly irregular.

Respondent William Gatchalian alleges that Mr. Nituda, being in 1973 Acting Commissioner of Immigration, had the authority to reverse the BOC Decision of 6 July 1962, since he (Nituda) had immediate control, direction and supervision of all officers, clerks and employees of the Bureau of Immigration. Control means, respondent Gatchalian continues, the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. 7

Respondent Gatchalian's view is obviously flawed. The Commissioner's power of control over the officers and employees of the Bureau of Immigration cannot be compared to the power of control and supervision vested by the Constitution in the President of the Philippines (which was what Ham was all about), for the Commissioner's general power of control cannot be said to include the power to review and set aside the prior final decision reached by the BOC. The Commissioner of Immigration, acting alone, cannot be regarded as an authority higher than the BOC itself (constituted by the Commissioner and the two [2] Associate Commissioners), in respect of matters vested by the governing statute in such Board itself. One of these matters is precisely the hearing and deciding of appeals from decisions of the BSI, and the motu proprio review of the entire proceedings of a case within one (1) year from the promulgation of a decision by the BSI. 8

Respondent Gatchalian points to Section 29 (b) of the Immigration Act as amended, as empowering Nituda to reverse the 1962 BOC Decision. Section 29 (b) reads as follows:

Section 29. . . .

xxx xxx xxx

(b) Notwithstanding the provisions of this section, the Commissioner of Immigration, in his discretion, may permit to enter (sic) any alien properly documented, who is subject to exclusion under this section, but who is —

(1) an alien lawfully resident in the Philippines who is returning from a temporary visit abroad;

(2) an alien applying for temporary admission.

It is difficult to understand respondent's argument. For one thing, Section 29 (b) relates to an "alien properly documented" while respondent Gatchalian precisely claims to be a citizen of the Philippines rather than a resident alien returning from a temporary visit abroad or an alien applying for temporary admission.

It should be recalled that Nituda's 1973 Decision approved a ruling rendered by a Board of Special Inquiry in 1973 that respondent Gatchalian was properly documented, a ruling which was precipitated by a "Petition for Rehearing" filed by respondent Gatchalian and his co-applicants in 8 March 1972 before the BSI. There are a number of obvious defects in the action of the BSI. Firstly, the motion for rehearing was filed way out of time. Rule 3, B 22 of the Immigration Rules and Regulations of 1 January 1941 provides as follows:

At any time before the alien is deported, but not later than seven days from the date he receives notice of the decision on appeal of the Board of Commissioners, the applicant or his attorney or counsel may file a petition for rehearing only on the ground of newly discovered evidence. Such petition shall be in writing and shall set forth the nature of the evidence discovered and the reason or reasons why it was not produced before. . . . (Emphasis supplied)

Respondent Gatchalian's and his co-applicants' motion for rehearing was filed, not seven (7) days but rather ten (10) years after notice of the 1962 BOC Decision had been received by them. Secondly, Rule 3, B 25 of the Immigration Rules and Regulations prescribed that any motion for rehearing shall be filed only with the Board of Commissioners; the Gatchalians' motion for rehearing was filed with the BSI which then purported to reopen the case "without first securing the consent in writing of the Commissioner of Immigration" as required by Rule 2, D 20.

Furthermore, the purported reversal of the 1962 BOC Decision was made not by the duly constituted BOC in 1973, but only by its Chairman, then Acting Commissioner Nituda. Mr. Nituda's action flew in the face of Rule 3, B 22 of the Immigration Rules and Regulation, which mandates that the decision of any two (2) members of the BOC shall prevail. It thus appears that Mr. Nituda purported to act as if he were the entire BOC. Indeed, even the BOC itself in 1973 could not have lawfully reversed a final decision rendered by the BOC ten (10) years ago. 9

We must, finally, not lose sight of the ruling in Arocha vs. Vivo (supra) where the Supreme Court expressly outlined the procedure to be followed by the BOC in resolving cases before them. This court was very explicit in holding that individual actions of members of the BOC are legally ineffective:

. . . [T]he former Immigration Commissioners appeared to have acted individually in this particular instance and not as a Board. It is shown by the different dates affixed to their signatures that they did not actually meet to discuss and vote on the case. This was officially made to record by the Secretary of Justice in his Memorandum Order No. 9, on January 24, 1962, wherein he stated.

that for the past several years, the Board of Commissioners of Immigration has not met collectively to discuss and deliberate in the cases coming before it. [Citation omitted]

Individual action by members of a board plainly renders nugatory the purpose of its constitution as a Board. The Legislature organized the Board of Commissioners precisely in order that they should deliberate collectively and in order that their views and Ideas should be exchanged and examined before reaching a conclusion (See Ryan vs. Humphrise, LRA 1915F 1047). This process is of the essence of a board's action, save where otherwise provided by law, and the salutary effects of the rule would be lost were the members to act individually, without benefit of discussion.

The powers and duties of boards and commissions may not be exercised by the individual members separately. Their acts are official only when done by the members convened in sessions, upon a concurrence of at least a majority and with at least a quorum present. [Citation omitted]

Where the action needed is not of the individuals composing a board but of the official body, the members must be together and act in their official capacity, and the action should appear on the records of the board. [Citation omitted]

Where a duty is entrusted to a board, composed of different individuals, that board can act officially only as such, in convened sessions, with the members, or a quorum thereof, present. [Citation omitted] 10 (Emphasis supplied)

The act of Mr. Nituda of reversing the 1962 Decision of the BOC could not hence be considered as the act of the BOC itself.

The pretended act of reversal 0of Mr. Nituda must, therefore, be stricken down and disregarded for having been made in excess of his lawful authority. The 1973 order of Nituda was ineffective to vest any right upon respondent Gatchalian who, it is worth nothing, did not pretend to submit any newly discovered evidence to support their claim to Philippine citizenship already rejected by the 1962 BOC. In essence, Mr. Nituda purported not merely to set aside the 1962 BOC Decision but also the 1967 Decision of this Court in Arocha vs. Vivo.

II

I turn to an examination of the underlying facts which make up the basis of the claim of William Gatchalian to Philippine citizenship. The most striking feature of this claim to Philippine citizenship is that it rests upon a fragile web constructed out of self-serving oral testimony, a total lack of official documentation whether Philippine or foreign, of negative facts and of invocation of presumptions without proof of essential factual premises. Put in summary terms, the claim of William Gatchalian to Philippine citizenship rests upon three (3) premises, to wit:

a. that Santiago Gatchalian was a Philippine citizen;

b. the supposed filiation of Francisco Gatchalian as a legitimate son of Santiago Gatchalian, which leads to the intermediate conclusion that Francisco was a Philippine citizen; and

c. the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian leading to the final conclusion that William Gatchalian is a Philippine citizen.

I respectfully submit that a careful examination of the facts made of record will show that the correctness and factual nature of each of these layered premises are open to very serious doubt, doubts which can only lead to the same conclusion which the BOC reached on 6 July 1962 when it reversed the BSI, that is, that there was failure to prove the Philippine citizenship of William Gatchalian and of his eight (8) alleged uncles, aunts and brother in 1961 when they first arrived in the Philippines.

1. The supposed Philippine citizenship of Santiago Gatchalian must be considered first. Santiago was allegedly born in Binondo, Manila, on 25 July 1905 to Pablo Pacheco and Marciana Gatchalian. The records do not disclose anything about Pablo Pacheco but everyone, including William Gatchalian, assumes that Pablo Pacheco was a Chinese subject and never became a citizen of the Philippine Islands. The basic claim of Santiago was that his mother Marciana Gatchalian was a Philippine citizen and that Marciana was not lawfully married to Pablo Pacheco and that consequently, he (Santiago) was an illegitimate son of Marciana Gatchalian.

The first point that should be made in respect of Santiago's claim was that he had always regarded himself as a Chinese citizen until around 1958 or 1960, that is, when he reached the age of 53 or 55 years. Santiago, by his own testimony, lived the bulk of his adult life in China where he went in 1924 at age 19 and where he stayed for about 13 years returning to the Philippines for the first time in 1937. He returned in the same year to China, stayed there for another nine (9) years, and then came back to the Philippines again in 1946. He once more left the Philippines for China on 14 April 1947 and returned on 14 June 1947. Upon his second return to the Philippines in 1946, he documented himself as a Chinese national: he was holder of ICR No. 7501 dated 3 May 1946. He continued to be documented as such, the record showing that he was also holder of an ACR No. A-219003 dated 13 January 1951. Santiago, again by his own statement, married in China a Chinese woman. This Chinese wife, however, Santiago never brought or attempted to bring to the Philippines and she allegedly died in China in 1951, or four (4) years after Santiago had permanently returned to the Philippines.

In 1958, when he was 53 years of age, Santiago obtained a residence certificate where for the first time he described himself as a Filipino. It was also only in 1960, that is, when Santiago was 55 years of age, that he filed a petition for cancellation of his ACR obviously upon the theory that he had always been a Philippine citizen. It was at the hearing of his petition for cancellation of his ACR that Santiago made his oral statements concerning the supposed circumstances of his birth, parentage and marriage. Santiago's petition to cancel his ACR was apparently made in preparation for efforts to bring in, the succeeding year, a whole group of persons as his supposed descendants.

The second point that needs to be made in respect of Santiago's claim of citizenship resting on his supposed status as an illegitimate son of a Filipina woman, is that no birth certificate bearing the name of Santiago Gatchalian was ever presented.

Instead, a baptismal certificate bearing the name Santiago Gatchalian was presented showing the name of Marciana Gatchalian, Filipina, as mother, with the name of the father unknown. There was also presented a marriage certificate dated 1936 of Joaquin Pacheco, alleged brother of Santiago Gatchalian, also showing Marciana Gatchalian as mother with the name of the father similarly left blank. These two (2) pieces of paper, together with Santiago's own statements to the Citizenship Evaluation Board as well as the statements of Joaquin Pacheco to the same Board, constituted the sum total of the evidence supporting Santiago's claim to Philippine citizenship and on the basis of which an Order dated 12 July 1960, signed by Felix S. Talabis, Associate Commissioner, granted the petition to cancel Santiago's alien registry.

In so issuing his Order granting cancellation of Santiago's ACR, Commissioner Talabis disregarded Santiago's failure to present a birth certificate, in obvious violation of rules of the Bureau of Immigration which expressly require the submission of a birth certificate, or a certified true copy thereof, in proceedings brought for cancellation of an ACR upon the ground that the petitioner is an illegitimate son of a Filipina mother. 11 It is well-settled that a baptismal certificate is proof only of the administration of baptism to the person named therein, and that such certificate is not proof of anything else and certainly not proof of parentage nor of the status of legitimacy or
illegitimacy
.
12

That Order also casually disregarded a number of other things, one of which was a document dated 1902 signed by Maxima Gatchalian, the mother of Marciana Gatchalian, stating that Maxima —

. . . residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I know of no legal impediment to such marriage. (Emphasis supplied)

Such parental consent indicated that a marriage ceremony would have taken place shortly thereafter as a matter of course; otherwise, the consent would have been totally pointless. Even more importantly, Commissioner Talabis' Order disregarded the testimony of Santiago Gatchalian himself in the same cancellation proceedings that he (Santiago) believed that his parents had been married by the Justice of the Peace of Pasig, Rizal. 13 In his Order, Commissioner Talabis referred to the fact that Santiago Gatchalian had been "interchangeably using his parental and maternal surnames. In school, he was known as Santiago Pacheco (Class Card for 1920-1921, Meisic Manila; Certificates of Completion of Third and Fourth Grades, Meisic Primary School). But in his Special Cedula Certificate No. 676812 dated 17 September 1937, and in tax clearance certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a Communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes Office." At the very least, such use of both paternal and maternal surnames indicated that Santiago was uncertain as to his supposed illegitimacy. In our case law, moreover, the use of a paternal surname may be regarded as an indication of possession of the status of a legitimate or acknowledged natural child. 14

Perhaps the most important aspect of Commissioner Talabis Order granting cancellation of Santiago's ACR, is that such Order failed to give any weight to the presumption in law in favor of marriage, a presumption significantly reinforced by the parental consent given by Maxima Gatchalian to the marriage of her daughter Marciana Gatchalian to one Pablo C. Pacheco. A related presumption is that in favor of the legitimacy of offspring born of a man and woman comporting themselves as husband and wife. 15 I respectfully submit that these presumptions cannot be successfully overthrown by the simple self-serving testimony of Santiago and of his alleged brother Joaquin Pacheco and by the two (2) pieces of paper (the baptismal certificate of Santiago and the marriage certificate of Joaquin Pacheco). It seems relevant to point out that Joaquin Pacheco, too, was unable to present any birth certificate to prove his supposed common parentage with Santiago Gatchalian; Joaquin was allegedly born in 1902, the same year that Maxima Gatchalian gave her consent to the marriage of Marciana Gatchalian and Pablo C. Pacheco.

The third point that needs to be underscored is that Santiago Gatchalian did nothing to try to bring into the Philippines his supposed sons and daughters and grandchildren since 1947, when he returned permanently to the Philippines, and until 1960. The story given by the nine (9) supposed descendants of Santiago when they first arrived in the Philippines was that they had left the People's Republic of China and had gone to Macao in 1952 and there they stayed until they moved to Hongkong in 1958. It should also be noted that the youngest supposed child of Santiago, Benjamin Gatchalian, was said to have been born in China in 1942 and was consequently only five (5) years old when Santiago returned permanently to the Philippines in 1947. In other words, Santiago Gatchalian behaved as if the nine (9) supposed descendants did not exist until 1960 when Commissioner Talabis' Order cancelling Santiago's ACR was issued.

It may also be noted that Santiago's 1951 ACR application mentioned only two (2) children of Santiago: Jose and Elena. In 1961, however, Santiago stated before the immigration investigator that he had a total of five (5) children: Jose, Elena, Francisco, Gloria and Benjamin. Santiago's explanation strongly echoes a common lawyer's excuse for failure to seasonably file some pleading, and, it is respectfully submitted, is equally contrived and unpersuasive; that he had his clerk fill up the ACR; that he gave his clerk four (4) names (not five [5]); that the clerk had simply failed to fill up the ACR correctly. In its 6 July 1962 Decision, the BOC noted that "while the two (2) names listed in [Santiago's] [ACR application] Jose and Elena, bear the same names as two of the [9] applicants, the difference in the ages of said persons compared to the said applicants, casts serious doubts on their Identity." 16

It is suggested in the majority opinion that the question of citizenship of Santiago Gatchalian is a closed matter which cannot be reviewed by this Court; that per the records of the Bureau of Immigration, as of 20 July 1960, Santiago Gatchalian had been declared to be a Filipino citizen and that this forecloses re-opening of that question thirty (30) years later. I must, with respect, disagree with this suggestion. The administrative determination by the Bureau of Immigration as of 20 July 1960 certainly does not constitute res adjudicata that forecloses this Court from examining the supposed Philippine citizenship of Santiago Gatchalian upon which private respondent William Gatchalian seeks to rely. The Court cannot avoid examining the Philippine nationality claimed by Santiago Gatchalian or, more accurately, claimed on his behalf by William Gatchalian, considering that one of the central issues here is the tanability or untenability of the claim of William Gatchalian to Philippine citizenship and hence to entry or admission to the Philippines as such citizen.

2. The second of the three (3) premises noted in the beginning of this section is: that Francisco Gatchalian was the legitimate son of Santiago Gatchalian and therefore followed the supposed Philippine citizenship of Santiago. This premise has in fact two (2) parts: (a) the physical filiation of Francisco Gatchalian as the son of Santiago Gatchalian; and (b) that Santiago Gatchalian was lawfully married to the Chinese mother of Francisco Gatchalian. This premise is remarkable for the total absence of documentary support for either of its two (2) parts. Francisco was born in Amoy, China in 1931, according to Santiago. The sum total of the evidence on this premise consists of Francisco Gatchalian's own statement and that of Santiago. No birth certificate or certified true copy thereof, or comparable documentation under Chinese law, was submitted by either Santiago or by Francisco. No secondary evidence of any kind was submitted. No testimony of a disinterested person was offered.

Santiago Gatchalian claimed to have been married in China in 1926 to a Chinese woman, Chua Gim Tee, out of which marriage Francisco was allegedly born. No documentary proof of such marriage in China, whether primary or secondary, was ever submitted. Neither was there ever presented any proof of the contents of the Chinese law on marriage in 1926 and of compliance with its requirements.

It is firmly settled in our jurisdiction that he who asserts and relies upon the existence of a valid foreign marriage must prove not only the foreign law on marriage and the fact of compliance with the requisites of such law, but also the fact of the marriage itself. In Yao Kee vs. Sy-Gonzales, 17 the issue before the Court was whether the marriage of petitioner Yao Kee to the deceased Sy Kiat in accordance with Chinese law and custom had been adequately proven. In rendering a negative answer, this Court, speaking through Cortes, J., said:

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law and custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory." The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code]. On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca vs. Orato, 7 Phil. 390, 395 (1907)]. The same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages, as determined by Philippine law.

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong vs. Cheong Seng Gee, 43 Phil. 43, 49 (1922). 18 (Emphasis supplied)

In the instant case, there was absolutely no proof other than Santiago's bare assertion that a marriage ceremony between Santiago and Chua Gim Tee had taken place in China in accordance with Chinese law. The contents of the relevant Chinese law on marriage at the time of the supposed marriage, was similarly not shown. Should it be assumed simply that the requirements of the 1926 Chinese law on marriage are identical with the requirements of the Philippine law on marriage, it must be pointed out that neither Santiago nor Francisco Gatchalian submitted proof that any of the requirements of a valid marriage under Philippine law had been complied with.

I respectfully urge, therefore, that the reliance in the majority opinion upon our conflicts rule on marriage embodied in Article 71 of the Civil Code (now Article 26 of the Family Code; then Section 19 of Act No. 3630) is unwarranted. The rule that a foreign marriage valid in accordance with the law of the place where it was performed shall be valid also in the Philippines, cannot begin to operate until after the marriage performed abroad and its compliane with the requirements for validity under the marriage law of the place where performed, are first shown as factual matters. There is, in other words, no factual basis for a presumption that a lawful marriage under Chinese law had taken place in 1926 in China between Santiago Gatchalian and Chua Gim Tee.

It must follow also that Francisco Gatchalian cannot simply rely upon a presumption of legitimacy of offspring of a valid marriage. As far as the record here is concerned, there could well have been no marriage at all in China between Santiago Gatchalian and Chua Gim Tee (just as Santiago had insisted that his father and mother had never married each other) and that consequently Francisco Gatchalian could just as well have followed the nationality of his admittedly Chinese mother.

3. The last premise noted earlier is the supposed filiation of William Gatchalian as a legitimate son of Francisco which resulted in William's following the supposed Philippine citizenship of Francisco Gatchalian. William was, according to Santiago Gatchalian, born in Amoy, China in 1949. Here again, just in the case of Francisco Gatchalian, there is a complete absence of contemporaneous documentary evidence of the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian. 19 The only support ever presented for such alleged filiation consisted of the oral statements of Santiago Gatchalian, Francisco Gatchalian and William Gatchalian. It is difficult to resist the impression that there took place here a pyramiding of oral statements, each resting upon another oral statement and all going back to the supposed bastardy of Santiago, a status suddenly discovered or asserted by Santiago in his 55th year in life. No birth certificate, or comparable documentation under Chinese law, exhibiting the name of William Gatchalian was submitted.

Francisco Gatchalian stated that he had married a Chinese woman, Ong Siu Kiok, in Amoy in 1947 according to Chinese custom. Once again, we must note that there was no proof submitted that a marriage ceremony satisfying the requirements of "Chinese custom" had ever taken place in China between Francisco and Ong Siu Kiok; neither was there any proof that a marriage "according to Chinese custom" was valid and lawful under Chinese law in 1947 and of factual compliance with the requirements of the law and custom in China concerning marriage. 20 Ong Siu Kiok was alleged to have died in Macau and never came to the Philippines. It must then follow, once again, that no presumption of a lawful marriage between Francisco Gatchalian and his alleged Chinese wife can be invoked by William Gatchalian. It follows still further that William Gatchalian cannot invoke any presumption of legitimacy in his own favor. As in the case of his putative father Francisco, William could as well have followed the nationality of his concededly Chinese mother.

One final note: it might be thought that the result I have reached is unduly harsh considering the prolonged physical stay of William Gatchalian in the country. But this Court must apply the law as it is in fact written. I respectfully submit that the appropriate recourse of respondent William Gatchalian, should he feel that he has some humanitarian claim to a right to stay in the Philippines, is to the political departments of Government. Those departments of Government may then consider the wisdom and desirability, in the light of the interests of the country, of legislation permitting the legalization of the entry and stay in the Philippines of respondent William Gatchalian and those similarly situated. Unless and until such legislation is enacted, this Court really has no choice save to apply and enforce our immigration law and regulations and our law on citizenship.

Accordingly, I vote to GRANT the Petition for Certiorari and Prohibition in G.R. Nos. 95122-23, and to SET ASIDE the Resolution/Temporary Restraining Order dated 7 September 1990 issued by respondent Judge Dela Rosa in Civil Case No. 90-5214, as well as the Order of respondent Judge Capulong dated 6 September 1990 in Civil Case No. 3431-V-90; and to RE-AFFIRM that respondent William Gatchalian is not a Philippine citizen.

Melencio-Herrera, Cruz, Paras, Padilla, Regalado, JJ., concur

Footnotes

* Renamed Bureau of Immigration as per Executive Order No. 292.

FELICIANO, J.: dissenting:

1 21 SCRA 532 (1967); 128 Phil. 566 (1967).

2 Section 36, Commonwealth Act No. 613 as amended, or Immigration Law.

3 Tiu Chun Hai and Go Tam vs. Commission of Immigration and the Director of National Bureau of Investigation, 104 Phil. 949 (1958); La Tang Bun vs. Fabre, 81 Phil. 683 (1948).

4 21 SCRA at 539.

5 Rollo of G.R. No. 24844, p. 32 (Brief for the Respondents-Appellants, p. 28); Rollo of G.R. No. 24844, p. 41 (Brief for the Petitioner-Appellee, p. 8).

6 21 SCRA at 541.

7 Citing Ham vs. Bachrach, 109 Phil. 949 (1968).

8 Section 27 (d), Commonwealth Act No. 613, as amended.

9 See Commissioner of Immigration vs. Hon. Fernandez, et al., 120 Phil. 178 (1964).

10 21 SCRA at 540.

11 Memorandum Circular, Department of Justice, dated 28 August 1958; Administrative Memorandum, Bureau of Immigration, dated 17 March 1952, cited in E.F. Hernandez and O.A. Domingo, Philippine Immigration Law and Procedure, (1970 ed.,) p. 437.

12 See, e.g., People vs. Villeza, 127 SCRA 349 (1984); Macadangdang vs. Court of Appeals, 100 SCRA 73 (1980); Fortus vs. Novero, 23 SCRA 1331 (1968); Cid vs. Burnaman, 24 SCRA 434 (1968); Vidaurraza vs. Court of Appeals, 91 Phil. 492 (1952); and Capistrano vs. Gabino, 8 Phil. 135 (1907).

13 The transcript of the investigation conducted on 12 February 1960 in CEB No. 3860-R, In Re Petition to Cancel Alien Registry, Santiago Gatchalian, petitioner, Annex "2" of private respondent Gatchalian's "Comment with Counter-Petition" in G.R. Nos. 95612-13 states:

"[Immigration Investigator]

Q It says here, "this is to certify that I, the undersigned, residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I know of no legal impediment to such marriage." Was your father, Pablo C. Pacheco, and mother, Marciana Gatchalian, ultimately or eventually married because of this consent of your grandmother?

[Santiago Gatchalian]

A Yes, I was informed by my brother Joaquin Pacheco that our parents were married by the justice of the peace of Pasig, Rizal." (Emphasis supplied)

In his subsequent testimony in the same proceedings, Joaquin Pacheco, and a singularly accommodating immigration investigator who posed obviously leading questions, sought to soften the impact of Santiago's admission that his parents were married:

"[Immigration Investigator]

Q Or is it because [Santiago] was ashamed to admit that he was a legitimate child and that is the reason why he said your parents were married?

[Joaquin Gatchalian]

A It may be also that he is ashamed to make it be known that he is a legitimate child that is why he said our parents are married." (Annex "B-9" of private respondent Gatchalian's "Comment with Counter-Petition" in G.R. Nos. 95612-13)

14 E.g., In Re Mallare, 59 SCRA 45 (1974); and Adriano vs. De Jesus, 23 Phil. 350 (1912).

15 See, in this connection, Rule 131, Section 5 (cc) and (dd) of the Rules of Court.

16 Annex "37" of Comment with Counter-Petition, G.R. Nos. 95612-13.

17 167 SCRA 736 (1988).

18 167 SCRA at 743-744.

19 William Gatchalian presented his own marriage contract executed in 1973, which showed as his parents Francisco Gatchalian and Ong Siu Kiok. This, of course, has no probative value for present purposes.

20 Yao Kee vs. Sy-Gonzales, supra.

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