Pre-week And Last Minute Lecture In Remedial Law (2019 Bar)

PRE-WEEK AND LAST MINUTE LECTURE IN REMEDIAL LAW (2019 BAR) BY:

ATTY. SALVADOR N. MOYA II, LL.M.

PART II -- SPECIAL PROCEEDINGS -VENUE AND PROCESS (RULE 73) Q.1.

When is the probate proceeding considered closed and terminated?

A.1. In the case of Sabidong vs. Solas (699 SCRA 303, 25 June 2013)(En Banc)[Villarama, Jr., J.],1 it was held that probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same.2 A property forming part of the estate under judicial settlement continues to be subject of litigation until the probate court issues an order declaring the estate proceedings closed and terminated. The rule is that as long as the order for the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated.3 CLAIMS AGAINST THE ESTATE (RULE 86) Q.2.

Where do you file the claims against the deceased person? Explain.

A.2. In the case of Heirs of the Late Spouses Flaviano Maglasang and Salud AdazaMaglasang vs. Manila Banking Corporation (706 SCRA 235, 23 September 2013)(Second Division) [Perlas-Bernabe, J.], it was held that: Claims against deceased persons should be filed during the settlement proceedings of their estate.4 Such proceedings are primarily governed by special rules found under Rules 73 to 90 of the Rules, although rules governing ordinary actions may, as far as practicable, apply suppletorily. Among these special rules, Section 7, Rule 86 of the Rules of Court, provides the rule in dealing with secured claims against the estate. Section 7, Rule 86 of the Rules of Court generally speaks of a creditor holding a claim against the deceased secured by a mortgage or other collateral security, it may be reasonably concluded that the aforementioned section covers all secured claims, whether by mortgage or any other form of collateral, which a creditor may enforce against the estate of the deceased debtor. On the contrary, nowhere from its language can it be fairly deducible that the said section would apply only to mortgages made by the administrator over any property belonging to the estate of the decedent. To note, mortgages of estate property executed by the administrator are also governed by Rule 89 of the Rules of Court captioned as Sales, Mortgages, and Other Encumbrances of Property of Decedent.

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In Sabidong, Article 1491, paragraph 5 of the Civil Code prohibits court officers such as clerks of court from acquiring property involved in litigation within the jurisdiction or territory of their courts. Citing Guilas vs. Judge of the Court of First Instance of Pampanga, et al., 150 Phil. 138 (1972). Citing Portugal vs. Portugal-Beltran, 467 SCRA 184 (16 August 2005). See Metropolitan Bank & Trust Company vs. Absolute Management Corporation, 688 SCRA 225 (9 January 2013).

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The case of Philippine National Bank vs. CA,5 did not, in any manner, limit the scope of Section 7, Rule 86. It only stated that the aforesaid section equally applies to cases where the administrator mortgages the property of the estate to secure the loan he obtained. Clearly, the pronouncement was a ruling of inclusion and not one which created a distinction. It cannot, therefore, be doubted that it is Section 7, Rule 86 of the Rules of Court which remains applicable in dealing with a creditor’s claim against the mortgaged property of the deceased debtor, as well as mortgages made by the administrator. Q.3. Explain.

What are the remedies available to a secured creditor against a deceased debtor?

A.3. Jurisprudence breaks down the rule under Section 7, Rule 86 and explains that the secured creditor has three remedies/options that he may alternatively adopt for the satisfaction of his indebtedness. In particular, he may choose to: (a) waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; (b)

foreclose the mortgage judicially and prove the deficiency as an ordinary claim;

and (c) rely on the mortgage exclusively, or other security and foreclose the same before it is barred by prescription, without the right to file a claim for any deficiency. It must, however, be emphasized that these remedies are distinct, independent and mutually exclusive from each other; thus, the election of one effectively bars the exercise of the others. With respect to real properties, the Supreme Court in Bank of America vs. American Realty Corporation6 ruled that: 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 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. The application of the procedure under Act No. 3135 must be concordant with Section 7, Rule 86 as the latter is a special rule applicable to claims against the estate, and at the same time, since Section 7, Rule 86 does not detail the procedure for extra-judicial foreclosures, the formalities governing the manner of availing of the third option – such as the place where the application for extra-judicial foreclosure is filed, the requirements of publication and posting and the place of sale – must be governed by Act No. 3135. DISTRIBUTION AND PARTITION OF THE ESTATE (RULE 90)

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Q.4.

What does a plaintiff seek in a Complaint/Petition for Partition? Explain.

A.4.

In the following cases:

412 Phil. 807 (2001). 378 Phil. 1279 (1999).

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1. 2. 3.

Capablanca vs. Heirs of Pedro Bas (828 SCRA 482, 28 June 2017)(Second Division) [Leonen, J.] Alcantara vs. Belen (824 SCRA 266, 25 April 2017)(First Division)[Sereno, CJ.] Bagayas vs. Bagayas (706 SCRA 73, 18 September 2013)(Second Division)[PerlasBernabe, J.], it was held that:

In a complaint/petition for partition, the plaintiff prays for: FIRST, a declaration that he is a co-owner of the subject properties; and SECOND, the conveyance of his lawful shares. This is because an action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved.7 The determination, therefore, as to the existence of co-ownership is necessary in the resolution of an action for partition. As held in the case of Municipality of Biñan vs. Garcia:8The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. It may end, on the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case – i.e., either the action is dismissed or partition and/or accounting is decreed – the order is a final one, and may be appealed by any party aggrieved thereby. In Lacbayan vs. Samoy, Jr.,9 which is an action for partition premised on the existence or nonexistence of co-ownership between the parties, the High Court categorically pronounced that a resolution on the issue of ownership does not subject the Torrens title issued over the disputed realties to a collateral attack. It must be borne in mind that what cannot be collaterally attacked is the certificate of title and not the title itself. As pronounced in Lacbayan: There is no dispute that a Torrens certificate of title cannot be collaterally attacked, but that rule is not material to the case at bar. What cannot be collaterally attacked is the certificate of title and not the title itself. The certificate referred to is that document issued by the Register of Deeds known as the TCT. In contrast, the title referred to by law means ownership which is, more often than not, represented by that document. Petitioner apparently confuses title with the certificate of title. Title as a concept of ownership should not be confused with the certificate of title as evidence of such ownership although both are interchangeably used. Courts must refrain from making a declaration of heirship in an ordinary civil action because matters relating to the rights of filiation and heirship must be ventilated in a special proceeding instituted precisely for the purpose of determining such rights. ADOPTION AND CUSTODY OF MINORS (RULE 99)

(Section 25 of A.M. No. 02-6-02-SC, the Rule on Adoption, effective 22 August 2002, provides that: 25. Repeal. – This supersedes Rule 99 and Rule 100 of the Rules of Court) Q.5. 7 8 9

What does the provision of Section 6, Rule 99 of the Rules of Court contemplate?

Dapar vs. Biascan, 439 SCRA 179 (27 September 2004). 180 SCRA 576 (22 December 1989). 645 SCRA 677 (21 March 2011).

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A.5. In the case of Masbate, et al. vs. Relucio (G.R. No. 235498, 30 July 2018)(Second Division)[Perlas-Bernabe, J.], it was held that: Section 6 of Rule 99 of the Rules of Court contemplates a situation in which the parents of the minor are married to each other but are separated either by virtue of a decree of legal separation or because they are living separately de facto. In Masbate, it has been established that petitioner and respondent were never married. Hence, the portion of the CA Decision allowing the child to choose which parent to live with was deleted, but without disregarding the obligation of petitioner to support the child. The Supreme Court further said that: For guidance, the relevant issue in Briones vs. Miguel10 for which the stated excerpt was made is actually the application of Section 6, Rule 99 of the Rules of Court insofar as it permits the child over ten (10) years of age to choose which parent he prefers to live with. As the Court's ruling in Briones was prefaced: the Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application of Section 6 of Rule 99 of the Rules of Court. Accordingly, since the statement in Pablo-Gualberto vs. Gualberto V11 invoked by petitioners, i.e., that Article 213 and Rule 99 similarly contemplate a situation in which the parents of the minor are married to each other was based on Briones, then that same statement must be understood according to its proper context – that is, the issue pertaining to the right of a child to choose which parent he prefers to live with. The reason as to why this statement should be understood in said manner is actually not difficult to discern: the choice of a child over seven (7) years of age (first paragraph of Article 213 of the Family Code) and over ten (10) years of age (Rule 99 of the Rules of Court) shall be considered in custody disputes only between married parents because they are, pursuant to Article 211 of the Family Code, accorded joint parental authority over the persons of their common children. Q.6. Is parental choice available to an illegitimate child of tender age pursuant to Art. 213 of the Family Code and Section 6, Rule 99 of the Rules of Court? A.6. No. This choice is not available to an illegitimate child, much more one of tender age as in the case Masbate, et al. vs. Relucio supra in view of the second paragraph of Article 213 of the Family Code, because sole parental authority is given only to the mother, unless she is shown to be unfit or unsuitable under Article 176 of the Family Code. Thus, since the issue in this case is the application of the exception to the tender-age presumption under the second paragraph of Article 213 of the Family Code, and not the option given to the child under the first paragraph to choose which parent to live with, petitioners' reliance on Pablo-Gualberto12 is grossly misplaced. RULE 102 (HABEAS CORPUS (RULE 102) THE GREAT WRIT OF LIBERTY Q.7.

What is the purpose of a Writ of Habeas Corpus?

A.7.

In the following cases:

1.

Agcaoili, Jr., et al. vs. Fariñas, et al. (G.R. No. 232395, 3 July 2018)(En Banc)[Tijam, J.] In the Matter of the Petition for the Habeas Corpus of Atty. Fernando Arguelles, Jr., et al. vs. Balajadia, Jr. (484 SCRA 653)(En Banc)[Azcuna, J.],13 it was held that:

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483 Phil. 483 (2004). 500 Phil. 226 (2005). Pablo-Gualberto vs. Gualberto V, 500 Phil. 226 (2005). Petitioners were cited in contempt and detained at the Senate due to the allegation in a Petition for Prohibition filed with the Supreme Court. The allegations states: The Committee Acted in Grave Abuse of Discretion Amounting to Lack of Jurisdiction by Conducting an Investigation, Purportedly ‘In Aid of Legislation,’ But in Reality ‘In Aid of Collection’ of a

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The Writ of Habeas Corpus or the great writ of liberty14 was devised as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.15 The primary purpose of the writ is to inquire into all manner of involuntary restraint, as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Under the Constitution, the privilege of the writ of Habeas Corpus cannot be suspended except in cases of invasion or rebellion when the public safety requires it.16 Q.8.

What is the coverage of the Writ of Habeas Corpus?

A.8. It covers any restraint which will preclude freedom of action as sufficient. Thus, as provided in the Rules of Court under Section 1, Rule 102 thereof, a writ of Habeas Corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Q.9.

What is the object of the Writ of Habeas Corpus?

A.9. In Tiu vs. Dizon (793 SCRA 595, 15 June 2016)(First Division)[Perlas-Bernabe, J], it was held that: The object of the writ of habeas corpus is to inquire into the legality of the detention, and, if the detention is found to be illegal, to require the release of the detainee. Wellsettled is the rule that the writ will not issue where the person in whose behalf the writ is sought is in the custody of an officer under process issued by a court or judge with jurisdiction or by virtue of a judgment or order of a court of record. 17 The writ is denied if the petitioner fails to show facts that he is entitled thereto ex merito justicias.18 Q.10.

What is the proper remedy to contest the custody of a person?

A.10. In the case of Masbate, et al. vs. Relucio (G.R. No. 235498, 30 July 2018)(Second Division)[Perlas-Bernabe, J.], it was held that: Petition for habeas corpus may be resorted to in cases where the rightful custody of any person is withheld from the person entitled thereto.19 In custody cases involving minors, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child. The grant of the writ depends on the concurrence of the following requisites: (1)

that the petitioner has the right of custody over the minor;

(2) that the rightful custody of the minor is being withheld from the petitioner by the respondents; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondents. Q.11.

Explain the right of parents’ custody in the exercise of parental authority.

A.11. The right of custody accorded to parents spring from the exercise of parental authority. Parental authority or patria potestas in Roman Law is the juridical institution whereby

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Handful of Clients of the Standard Chartered Bank for Losses Which Were for Their Account and Risk Which Collection is Within the Province of the Court Rather Than of the Legislature. Morales, Jr. vs. Minister Enrile, et al., 206 Phil. 466 (1983). Villavicencio vs. Lukban, 39 Phil. 778 (1919). Section 15 Article III. Mangila vs. Pangilinan, 701 SCRA 355 (17 July 2013). Caballes vs. CA, 492 Phil. 410 (2005). Sombong vs. CA, 322 Phil. 737 (1996).

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parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs. It is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. As regards parental authority, there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.20 Q.12.

Who exercises parental authority over the common children?

A.12. As a general rule, the father and the mother shall jointly exercise parental authority over the persons of their common children.53 MOTHERS ARE ENTITLED TO THE SOLE PARENTAL AUTHORITY OF THEIR ILLEGITIMATE CHILDREN Q.13.

Who exercises parental authority over an illegitimate child?

A.13. Insofar as illegitimate children are concerned, Article 176 21 of the Family Code states that illegitimate children shall be under the parental authority of their mother. In Masbate, et al. vs. Relucio supra, the Supreme Court held that: Mothers are entitled to the sole parental authority of their illegitimate children, notwithstanding the father's recognition of the child. In the exercise of that authority, mothers are consequently entitled to keep their illegitimate children in their company, and the Court will not deprive them of custody, absent any imperative cause showing the mother's unfitness to exercise such authority and care. 22 In addition, Article 213 of the same Code provides for the so-called tender-age presumption, stating that no child under seven (7) years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. The rationale behind the rule was explained by the Code Commission in this wise: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for compelling reasons for the good of the child; those cases must indeed be rare, if the mother's heart is not to be unduly hurt.23 Q.14. What are the compelling reasons that the custody of a child under seven (7) years of age can be wrested away from the mother? A.14. According to jurisprudence, the following instances may constitute compelling reasons to wrest away custody from a mother over her child although under seven (7) years of age: 1. 2. 3. 4. 5. 6. 7. 8. 20 21

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neglect; abandonment; unemployment; immorality; habitual drunkenness; drug addiction; maltreatment of the child; insanity or affliction with a communicable disease. 24

Tonog vs. CA, 427 Phil. 1 (2002), citing Santos, Sr. vs. CA, 312 Phil. 482 (1995). Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. x x x The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. See Briones vs. Miguel, 483 Phil. 483 (2004). Tonog vs. CA, supra. Pablo-Gualberto vs. Gualberto V, 500 Phil. 226 (2005).

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CONCURRENT JURISDICTION OF THE SC, CA, AND RTC, OVER PETITIONS OF HABEAS CORPUS Q.15. Explain.

Which court has jurisdiction to hear, try and decide petitions for habeas corpus?

A.15. In the case of Agcaoili, Jr., et al. vs. Fariñas, et al. (G.R. No. 232395, 3 July 2018)(En Banc)[Tijam, J.], the High Court ruled that: Jurisdiction over petitions for habeas corpus and the adjunct authority to issue the writ are shared by the Supreme Court and the lower courts. The Constitution vests upon the Supreme Court original jurisdiction over petitions for habeas corpus.25 On the other hand, Batas Pambansa Blg. 129,26 as amended, gives the CA original jurisdiction to issue a writ of habeas corpus whether or not in aid of its appellate jurisdiction. 27 The CA's original jurisdiction over Habeas Corpus petitions was re-stated in R.A. No. 7902.28 Similarly, B.P. Blg. 129 gives the RTC’s original jurisdiction in the issuance of a writ of Habeas Corpus.29 Family courts have concurrent jurisdiction with this Court and the CA in petitions for habeas corpus where the custody of minors is at issue,30 with the Family courts having exclusive jurisdiction to issue the ancillary writ of Habeas Corpus in a petition for custody of minors filed before it.31 In the absence of all RTC judges in a province or city, special jurisdiction is likewise conferred to any Metropolitan Trial Judge, Municipal Trial Judge or Municipal Circuit Trial Judge to hear and decide petitions for a writ of Habeas Corpus.32 These conferment of jurisdiction find procedural translation in Section 2 of Rule 102, which provides that an application for a writ of Habeas Corpus may be made before this Court, or any member thereof, or the Court of Appeals or any member thereof, and if so granted, the same shall be enforceable anywhere in the Philippines. 33 An application for a writ of Habeas Corpus may also be made before the RTCs, or any of its judges, but if so granted, is enforceable only within the RTC's judicial district. The writ of Habeas Corpus granted by the Court or by the CA may be made returnable before the court or any member thereof, or before the RTC or any judge thereof for hearing and decision on the merits. It is clear from the foregoing that the Supreme Court, the CA and the RTC enjoy concurrent jurisdiction over petitions for habeas corpus. Q.16. Can the Writ of Habeas Corpus be issued if there is already a court order legitimizing the confinement of a person? 25 26 27 28

29 30

31 32 33

Section 5(1) Article III. The Judiciary Reorganization Act of 1980. Section 9, B.P. Blg. 129. An Act Expanding the Jurisdiction of the Court Of Appeals, Amending for the Purpose Section Nine of Batas Pambansa Blg. 129, as Amended, Known as the Judiciary Reorganizatio Act of 1980. Approved on 23 February 1995. Section 21, B.P. Blg. 129. R.A. No. 8369 or the Family Courts Act of 1997 and A.M. No. 03-03-04-SC, Re: Proposed Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of which provides that: Section 20. Petition for writ of habeas corpus.– A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. xxxx The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. xxxx See also In the Matter of Application for the Issuance of a Writ of Habeas Corpus Richard Brian Thornton for and in behalf of the minor child Sequeira Jennifer Delle Francisco Thornton v. Adelfa Francisco Thornton, 480 Phil. 224 (2004). A.M. No. 03-04-04-SC (22 April 2003). Section 35, B.P. Blg. 129. Section 2 Rule 102 of the Rules of Court.

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A.16. No. In Agcaoili, Jr., et al. vs. Fariñas, et al. (G.R. No. 232395, 3 July 2018)(En Banc) [Tijam, J.], it was held that: A Writ of Habeas Corpus may no longer be issued if the person allegedly deprived of liberty is restrained under a lawful process or order of the court34 because since then, the restraint has become legal. 35 In the illustrative case of Ilagan vs. Hon. Ponce Enrile,36 the Supreme Court dismissed the petition for habeas corpus on the ground of mootness considering the filing of an information before the court. The High Court pronounced that since the incarceration was now by virtue of a judicial order, the remedy of habeas corpus no longer lies. In Duque vs. Capt. Vinarao,37 the Supreme Court held that a petition for habeas corpus can be dismissed upon voluntary withdrawal of the petitioner. Further, in Pestaño vs. Corvista,38 it was pronounced that where the subject person had already been released from the custody complained of, the petition for habeas corpus then still pending was considered already moot and academic and should be dismissed. This pronouncement was carried on in Olaguer vs. Military Commission No. 34,39 where the Supreme Court reiterated that the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the petition for the issuance of the writ becomes moot and academic. Thus, with the subsequent release of all the petitioners from detention, their petition for habeas corpus has been rendered moot. The rule is that courts of justice constituted to pass upon substantial rights will not consider questions where no actual interests are involved and thus, will not determine a moot question as the resolution thereof will be of no practical value. 40 Q.17. Can a court, apart from that which issued the writ of habeas corpus, hear the return of the said writ? A.17. Yes. In the case of Agcaoili, Jr., et al. vs. Fariñas, et al. (G.R. No. 232395, 3 July 2018) (En Banc)[Tijam, J.], it was held that: Under Section 6, Rule 102, the return of the writ of Habeas Corpus may be heard by a court apart from that which issued the writ. 41 In such case, the lower court to which the writ is made returnable by the issuing court shall proceed to decide the petition for habeas corpus. In Medina vs. Gen. Yan42 and Saulo vs. Brig. Gen. Cruz, etc.,43 the Supreme Court held that by virtue of such designation, the lower court acquires the power and authority to determine the merits of the petition for habeas corpus. Indeed, when a court acquires jurisdiction over the petition for habeas corpus, even if merely designated to hear the return of the writ, such court has the power and the authority to carry the petition to its conclusion. Q.18. Can the Supreme Court assume jurisdiction over a Petition for Habeas Corpus Case by invoking Section 6, Article VIII of the Constitution and Section 3(c), Rule 4 of A.M. No. 10-4-20SC which both refer to the Court's exercise of administrative supervision over all courts? A.18. No. First, under Section 6, Article VIII of the Constitution provides: Sec. 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. This constitutional provision refers to the administrative supervision that the Department of Justice previously exercised over the courts and their personnel.

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36 37 38 39 40 41 42 43

See In Re: Petition for Habeas Corpus of Villar vs. Director Bugarin, 224 Phil. 161 (1985). In the Matter of the Petition for Habeas Corpus of Harvey vs. Hon. Santiago, 245 Phil. 809 (1988), citing Cruz vs. Gen. Montoya, 159 Phil. 601 (1975). Integrated Bar of the Philippines vs. Hon. Ponce Enrile, 223 Phil. 561 (1985). 159 Phil. 809 (1975). 81 Phil. 53 (1948). 234 Phil. 144 (1987). Korea Exchange Bank vs. Judge Gonzales, 520 Phil. 690 (2006). Section 6, Rule 102 of the Rules of Court. 158 Phil. 286 (1974). 109 Phil. 378 (1960).

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Administrative supervision merely involves overseeing the operations of agencies to ensure that they are managed effectively, efficiently and economically, but without interference with day-to-day activities.44 Thus, to effectively exercise its power of administrative supervision over all courts as prescribed by the Constitution, Presidential Decree No. 828, as amended by Presidential Decree No. 842, created the Office of the Court Administrator. Nowhere in the functions of the several offices in the Office of the Court Administrator is it provided that the Court can assume jurisdiction over a case already pending with another court. In Agcaoili, Jr., et al., the Supreme Court further held that: Clearly, the administrative function of the Court to transfer cases is a matter of venue, rather than jurisdiction. As correctly pointed out by respondents, the import of the Court's pronouncement in People of the Philippines vs. Gutierrez, et al.45 is the recognition of the incidental and inherent power of the Court to transfer the trial of cases from one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice, so demands. Such incidental and inherent power cannot be interpreted to mean an authority on the part of the Court to determine which court should hear specific cases without running afoul with the doctrine of separation of powers between the Judiciary and the Legislative. Q.19. If there are compelling reasons to separate the minor child from the mother, to whom shall the custody of the minor child be given? A.19. In the case of Masbate, et al. vs. Relucio supra, the Supreme Court held that: In the event that the mother is found unfit or unsuitable to care for her daughter, Article 214 of the Family Code mandates that substitute parental authority shall be exercised by the surviving grandparent. However, the same Code further provides in Article 216 that in default of parents or judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated: Article 216. x x x (1)

The surviving grandparent as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) disqualified.

The child's actual custodian, over twenty-one years of age, unless unfit or

WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) CHILD'S WELFARE IS THE SUPREME CONSIDERATION Q.20.

What is the order of preference under A.M. No. 03-04-04-SC?

A.20. The same order of preference under Article 216 of the Family Code with respect to substitute parental authority is reiterated in Section 13 of A.M. No. 03-04-04-SC, the "Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors," to wit: Section 13. Provisional order awarding custody. – After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody: x-x-x (e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; x x x

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Executive Order No. 292, Book IV, Chapter 7, Section 38(2). 146 Phil. 761 (1970).

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Thus, in the case of Masbate, et al. vs. Relucio supra, it was not disputed that the illegitimate father was in actual physical custody of the minor daughter when the mother left for Manila to pursue her studies until the controversy took place. As such, the illegitimate father had already assumed obligations and enjoyed privileges of a custodial character, giving him a cause of action to file a case of habeas corpus to regain custody of their illegitimate daughter as her actual custodian. Under the present rules, A.M. No. 03-04-04-SC explicitly states that in awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. 46 The High Court concluded in Masbate, et al. supra, that: The Court cannot close its eyes to the sad reality that not all fathers, especially those who have sired children out of wedlock, have risen to the full height of a parent's responsibility towards his offspring. Yet, here is a father of an illegitimate child who is very much willing to take on the whole gamut of parenting. He, thus, deserves, at the very least, to be given his day in court to prove that he is entitled to regain custody of his daughter. As such, the CA's order to remand the case is proper. Q.21. Is it correct for the trial court to award 24-hour custody every month to the petitioner, who is the illegitimate father, pending trial of the petition for habeas corpus and child custody over the minor child? A.21. No. It should be stressed that Section 15 of A.M. No. 03-04-04-SC provides for temporary visitation rights, not temporary custody. The temporary custodian shall give the court and non-custodial parent or parents at least five days' notice of any plan to change the residence of the minor or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the non-custodial parent or parents. It is only after trial, when the court renders its judgment awarding the custody of the minor to the proper party, that the court may likewise issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody, pursuant to Section 18 of A.M. No. 03-04-04-SC. In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance, and education of the minor, irrespective of who may be his/her custodian. In determining the amount of support. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. In the case of Masbate, et al. vs. Relucio supra, the High Court further held that: By granting temporary albeit limited custody ahead of trial, the appellate court overturned the tender-age presumption with nothing but the illegitimate father’s bare allegations, to which the Court cannot give its imprimatur. As earlier intimated, the issue surrounding the mother’s fitness must be properly threshed out in the trial court before she can be denied custody, even for the briefest of periods, over their minor daughter. In view of the disposition in Silva and Briones and the rules quoted above, the Court can only uphold the illegitimate father’s visitation rights, which shall be limited to two (2) days per week, without prejudice to the mother allowing him additional days. However, consistent with the aforesaid 46

See Section 14 of A.M. No. 03-04-04-SC.

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cases, as well as the more recent case of Grande vs. Antonio,47 the illegitimate father may take her daughter out only upon the written consent of the mother. Contrary to the posturing of the appellate court, the requirement for the consent of the mother is consistent with the regime of sole maternal custody under the second paragraph of Article 213 of the Family Code with respect to children under seven (7) years of age, which may be overcome only by compelling evidence of the mother's unfitness. Until and unless the illegitimate father is able to substantiate his allegations, he can only claim visitation rights over his daughter. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (RULE 108) Q.22. Describe the kind of proceeding contemplated under Rule 108 of the Rules of Court on the cancellation or correction of entries in the Civil Registry? Explain. A.22. In the case of Almojuela vs. Republic (801 SCRA 399, 24 August 2016)(First Division) [Perlas-Bernabe, J.], it was held that: Rule 108 of the Rules of Court provides the procedure for the correction of substantial changes in the civil registry through an appropriate adversary proceeding.48 An adversary proceeding is defined as one having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. 49 A reading of Sections 4 and 5 shows that the Rule mandates two (2) sets of notices to potential oppositors: (1) (2)

one given to persons named in the petition; and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties.50

Consequently, the petition for a substantial correction of an entry in the civil registry should implead as respondents the civil registrar, as well as all other persons who have or claim to have any interest that would be affected thereby. Q.23. petition?

When can publication be allowed to cure the defect in the notice of hearing of the

A.23. In the following instances, publication may be allowed to cure the defect in the notice of hearing when: (a) (b) (c) (d)

earnest efforts were made by petitioners in bringing to court all possible interested parties; the parties themselves initiated the corrections proceedings; there is no actual or presumptive awareness of the existence of the interested parties; or, when a party is inadvertently left out, these exceptions are, unfortunately, unavailing in this case.

Q.24. What will happen to the petition in case of non-compliance with the procedure laid down under Rule 108 of the Rules of Court? Explain.

47 48 49 50

727 Phil. 448 (2014). See Republic vs. Mercadera, 652 Phil. 195 (2010). Republic vs. Uy, 716 Phil. 254 (2013). Republic vs. Coseteng-Magpayo, 656 Phil. 550 (2011).

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A.24. The failure to strictly comply with the requirements of Rule 108 of the Rules of Court for correction of an entry in the civil registrar involving substantial and controversial alterations renders the entire proceedings therein null and void. In Republic vs. CA,51 the Supreme Court held that the proceedings of the trial court were null and void for lack of jurisdiction as the petitioners therein failed to implead the civil registrar, an indispensable party, in the petition for correction of entry. Substantial correction is allowed under Rule 108 of the Rules of Court. As reiterated in Eleosida vs. Local Civil Registrar of Quezon City, 52 the Supreme Court held that: The ruling in Republic vs. Valencia53 provides that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 of the Rules of Court provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

51 52 53

325 Phil. 361 (1996). 382 SCRA 22 (2002). 225 Phil. 408 (1986).