Today is the last day of the year 2010 and I am ending this year's entry with a beautiful song I just heard today. I didn't have a second thought that this song was by Gloc9 and it is definitely worth blogging for me.

I was teary eyed while I was absorbing all the lyrics of the song. The lyrics is in Filipino, our language and I intend to translate it, but I have to suspend that for the moment. I just want to write about this song for the meantime and why I was close to tears when I heard this.

I have always been an advocate of loyalty and passion to our nation, to our beloved Philippines so that I could at least have a hope that something, if not everything will turn out fine in the end for our country.

The song talks about industrious people, professionals, learned people who leave our motherland for a greener pasture. In the academe, they call this "brain-drain" but to common people, this is understood to be settling for the "surplus". We just settle for what's left with us. Imagine visiting a hospital, public of private, being served by a fresh graduate, nurse. I don't intend to demean this profession, on the contrary, I so admire them, but we have to face the thought that the more matured and experienced nurses are leaving and the patients in pain will have no choice but to settle to the young nurses. The same goes to our Engineers, Teachers, Accountants or even our domestic helpers.

It is not a secret to what has happened to our country. The more professionals and industrious people leaving the country, chances are, the ruling elites, the traditional politicians, the greedy capitalists etc will have more "happy hour" in perpetuating their evil motives by simply lifting a finger and telling people what to do.

This song is so true, straightly detailing what is really happening in our country.

We are welcoming 2011 and we had changed political leaderships so in the coming new year, our hopes for the country will remain high, even higher. God bless Pilipinas.

The lyrics of the song from http://www.lyrics-buddy.com/2010/12/walang-natira-by-gloc-9/

Napakaraming nurse dito sa amin
ngunit bakit tila walang natira ahh
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila

yung bayang sinilangan ang pangalan ay Pinas
ngunit bakit parang puno na ang prutas ay pitas
nauubusan ng batas parang inamag na bigas
lumalakas na ang ulan ngunit ang payong ay butas
tumatakbo ng madulas mga pinuno ay ungas
sila lamang ang nakikinabang pero tayo ang utas
mga kabayan natin ay lumilipad, lumalabas
para pumunta ng ibang bansa at doon magtamas
ng kamay para lamang magkakalyo lang muli
ang pahinga’y iipunin para magamit pag-uwi
dahil doon sa atin mahirap makuha buri
mapahiran ng chokolate ang matamis na ngiti
ng anak na halos di nakilala ang ama
o ina na wala sa tuwing kaarawan nila
dadarating kaya ang araw na ito’y magiiba
kung hindi ka sigurado magisip-isip ka na
Napakaraming inhinyero dito sa amin
ngunit bakit tila walang natira ahh
napakaraming karpintero dito sa amin
ngunit bakit tila walang natira ahh
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila
mabuti kung mabuti ang kinakahinatnan
ang kapalaran ng lahat nang nakipagsapalaran
kahit nag-aalangan para lang sa kapakanan
ng mahal sa buhay ang sugal ay tatayaan
sasanlaan lahat ng kanilang pag-aari
mababawi din naman yan ang sabi pagnayari
ang proseso ng papeles para makasakay na sa eroplano
o barko kahit saan man papunta
basta kumita ng dolyar na ipapalit sa piso
ang isa ay katumbas ng isang dakot ng mamiso
ganyan ba ang kapalit ng buhay ng pilipino
kung lilisanin ang pamilya ang amo na kahit na sino
gugtumin, sasaktan, malalagay sa peligro
uwing nasa kahon ni wala man lang testigo
darating kaya ang araw na itoy mag-iiba
kung hindi ka sigurado magisip-isip ka na
Napakaraming kasambahay dito sa amin
ngunit bakit tila walang natira ahh
napakaraming labandera dito sa amin
ngunit bakit tila walang natira ahh
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila
subukan mong isipin kung gaano kabigat
ang buhat ng maleta halos hindi mo na maangat
ihahabilin ang anak para ito sa kanila
lalayo upang mag-alaga ng anak ng iba
matapos lamang sa kolehiyo mututubos din ang relo
bilhin mo na kung anong gustong laruan ni Angelo
matagal pa kontrato ko titiisin ko muna to
basta ang mahalaga ito’y para sa pamilya ko
Napakaraming guro dito sa amin
ngunit bakit tila walang natira ahh
napakaraming nurse dito sa amin
ngunit bakit tila walang natira ahh
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila ahh
gusto kong (yumaman 5x)
nagaabroad sila
napakaraming tama dito sa atin
ngunit bakit tila walang natira ahh

thanks!
Happy new Year everyone! Mabuhay Pilipinas!

It's Christmas! I wanna share with you my most favorite Christmas song.

Chestnuts roasting on an open fire
Jack Frost nipping at your nose
Yuletide carols being sung by a choir
And folks dressed up like Eskimos.

Everybody knows a turkey and some mistletoe
Help to make the season bright
Tiny tots with their eyes all aglow
Will find it hard to sleep tonight.

They know that
He's bringing lots of toys and goodies on his sleigh
And every mother's child is gonna spy
To see if reindeer really know how to fly.

And so I'm offering this simple phrase
To kids from one to ninety-two
Although it's been said many times, many ways
Merry Christmas to you.

And so I'm offering this simple phrase
To kids from one to ninety-two
Although it's been said many times, many ways
Merry Christmas to you.

I got the lyrics from this site: http://www.christmas-songs.org/songs/chestnuts_roasting_on_an_open_fire.html

I love the classy way it was sung but the most memorable interpretation that keeps ringing in my ears is that of Karen Carpenters. I love her singing.

When I was little, I remember asking my mom, "What is a chestnut?"

Having been living in the province, 200 kilometers from the Capital City, I do not know what is a chestnut. During that time, I knew this thing - the chestnut - could only be known in Manila, not in the provinces, never in my hometown. When I finally got the chance to celebrate one Christmas with relatives in Manila, I got to see chestnut, not taste it.

I know we cannot afford to buy that thing or probably it was not an important food during Christmas eve, at least here in the Philippines. I remember seeing the way they cook it in a very big pan, which was very oily with tiny pieces of charcoal, I think. I am not really sure what was that thing they placed in the pan together with the nut.

Eventually, when finances of the family was leaning positive, my mom, whom I always begged for chestnut, finally bought home a bag of the nut one evening. I remember how excited I was to see it, taste it, savor it. That was Christmas and that was the very reason why I love this song.

Merry Christmas everyone! Happy Holidays to all!

DOMAGAS vs. JENSEN

GRN 158407 158407 January 17,2005

Callejo, Sr. J.:

FACTS:

Petitioner Domagas filed for a forcible entry case against Jensen. Summons and complaint were not served on respondent because the latter was apparently out of the country but it was received by respondent’s brother Oscar who was then at the respondent’s house. The trial court rendered a decision in favor of petitioner. Respondent did not appeal. August 20, 2000, respondent filed a complaint against petitioner for the annulment of the decision of MTC since the service of summons was ineffective, the respondent being out of the country. The RTC decided in favor of Jensen since there was no valid service of the complaint and summons. The CA affirmed the decision, ruling that the case was an ejectment case which is an action quasi in rem.

ISSUE:

Whether or not the action of petitioner in the MTC against respondent is an action in personam or quasi in rem.

RULING:

The action of the petitioner fro forcible entry is a real action and one in personam. The settled rule is that the aim and object of an action determine its character. Whether a proceeding is in rem or in personam or in quasi in rem is determined by its nature and purpose, and by these only. A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant. Of this character are suits to compel a defendant to specifically perform some act or actions to fasten a pecuniary liability on him. An action in personam is said to be one which has for its object a judgment against a person, as distinguished from a judgment against the proprietary to determine its state… Actions for recovery of real property are in personam.

v Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interest of all possible claimants. The judgments therein are binding only upon the parties who joined in the action.

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PAGTAKHAN et al. vs. Court of Industrial Relations

GRN L- 23867 June 10, 1971

Zaldivar, J.:

FACTS:

On May 30, 1964 La Perla (respondents) file a motion for reconsideration to the order of CIR judge which is adverse to the former, dated May 20, 1964. On June 18, 7964 employee-complaints filed their opposition to the motion for reconsideration and in turn, on July 7, 1964 respondents filed their reply to complaints’ opposition. The motion for reconsideration was heard on an argument before the CIR en banc on August 24, 1964. CIR en banc set aside the order of trial judge of May 20, 1964 and ordering the return of the case to the trial court for further proceedings.

ISSUE:

Whether or not the filing of a motion to reconsider an interlocutory order of a trial judge has the effect of automatically elevating the case from the sala of the CIR trial judge to the CIR en banc thereby suspending the proceedings before the trial court until the CIR en banc will have resolved the motion for reconsideration.

RULING:

We are of the considered view that the CIR en banc erred in holding that the trial judge should have suspended the hearing of the case upon the filing by the respondents of a motion for the reconsideration of the trial court’s order denying respondent’s motion to dismiss. It is the settled rule that an order denying a motion to dismiss action is an interlocutory order, and that interlocutory order is not appealable.

The settled rule that no appeal should be allowed from an interlocutory order… “to avoid multiplicity of appeals in a single action, which must necessarily suspend the hearing and decision on the merits of the case during the pendency appeal.” Thereby discouraging piecemeal appeals which delay the speedy disposition of the cases. The proceeding before one judge… which disposes of completely the case and gives an end to the litigation… unless the order is appealed… and the appeal should refer to a decision that is final which means a decision or order that has finally disposes of the pending action and nothing more can be done with it in the trial court.

Moran:

“… when the order of judgment does not dispose of the case completely but leaves something to be done, upon the merits, it is merely interlocutory.”

=================

QUELNAN vs. VHF PHILIPPINES

GRN 145911 July 7, 2004

Carpio-Morales, J.:

FACTS:

Petitioner purchased one condo unit from VHF from which he allegedly have overpaid in the amount of 270K. they agreed verbally to debit said amount for the purchase of another condo unit. Petitioner took possession of the second unit and later on found out that said unit was mortgaged and he was being charged the interests and penalties on the mortgage. An ejectment case was likewised filed against him. Petitioner failed to answer said case and after respondents presented the required documentary evidence. MeTC ordered his ejectment. Petitioner did not appeal this decision and he was in fact ejected from the unit. In 1994, petitioner filed a complaint for rescission (of the alleged verbal contract of sale) and damage against respondents. Petitioner’s counsel received the January 17, 1997 order declaring petitioner non-suited and accordingly dismissing the complaint on February 12, 1997. When petitioner’s counsel filed a manifestation and Ex-forte Motion, on January 24, 1997 an omnibus Motion to set aside said order, 12 days of the 15-day period had elapsed. The filing of the Omnibus Motion interrupted the period of appeal, and it began to run again when, on March 19, 1997 petitioner’s counsel received a copy of the Order of March 12, 1997 denying the Omnibus Motion.

ISSUE:

Whether or not the appeal on the Decision was timely.

RULING:

The denial of the motion for reconsideration of an order of dismissal of a complaint is not an interlocutory order, but a final order as it puts end to the particular matte resolved, or settles definitely the matter therein disposed of, and nothing is left for the trial court to do other than execute the order.

Nothing being an interlocutory order, an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself.

The reference by petitioner, in his notice of appeal, to the March 12, 1999 order denying his omnibus Motion… should does be deemed to refer to the order of January 17, 1999 which declared him not-suited and accordingly dismissed his complaint.

If the proscription against appealing an order denying a motion for reconsideration is applied to any order, than there would have been no need to specially mention in the both sections of the Rules 39 & 41, there can be no mistaking that what is proscribed is to appeal from a denial of a motion for reconsideration of an interlocutory order.

===================

APUYAN vs. HALDEMAN

GRN 129980 September 20, 2004

Azcuna, J.:

FACTS:

Apuyan filed for a petition for quieting of title against respondents. Respondents filed on answer alleging among other that they have been in possession of their respective properties since 1962 and that petitioner produced his title to the property through fraud. The trial court ordered the hearing suspended until the termination of the proceedings before the DENR. After DENR ruled in favor of petitioner herein, RTC held parties into a pre-trial agreement and subsequently ruled that petitioner was guilty of fraud and misrepresentation while respondents are the owners of the land in question by virtue of the documentary and oral evidence, including the dismissal of the ejectment case filed by petitioner against respondents. Plaintiff received a copy of the decision on October 17, 1996 and filed a motion for reconsideration on time. Reconsideration was denied and an appeal notice therefrom was filed but RTC ruled that plaintiff failed to perfect his appeal thus the order become final and executor. CA observed that “the notice of appeal filed with trial court on January 14, 1997 was not form the decision, but from the order denying the motion for reconsideration which cannot be done. It stated that although the notice of appeal prayed for the elevation of the entire records to the CA, it did not cure the defect in the notice of appeal.

ISSUE:

Whether or not CA erred in holding that the inadvertent omission in the petitioner’s notice of appeal to include the RTC’s decision as being appealed from is fatal to petitioner’s appeal.

RULING:

We rule in the affirmnative.

Section 9 of Rule 37 and Section 1 of Rule 41 of the present Rules of Civil Procedure… provide:

Sec 37. Remedy against denying a motion for new trial or reconsideration. An order denying a motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order.

Sec 41. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

In the case at bar, we consider that an appeal from the order denying the motion for reconsideration of the judgment of the trial court as an appeal from a final order. Then trial court’s decision dated January 7, 1997 denying petitioner’s motion for reconsideration of the trial court’s decision dated October 9, 1996 is not an interlocutory order but a final order, as the trial court finally resolved therein the issues raised in the MR, which were already passed upon in the RTC’s decision. In effect, petitioner appealed from the final order of the trial court dated January 7, 1997 which appeal was filed on time.

PNB vs. RITRATTO GRP

GRN 142616 July 31, 2001

Kapunan, J.:

FACTS:

PNB-IFL, a subsidiary company of PNB extended credit to Ritratto in the amount $300,000 secured by the real estate mortgages on two parcels of land located in Makati. Said credit was increased until April 1998. Respondent’s outstanding obligations up to that time stood at $1,497,274.40. Pursuant to the terms of the mortgage, PNB-IFL thru PNB, foreclosed the property and were subject to public auction.

Respondents filed a complaint for injunction with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order. PNB filed a motion to dismiss on the grounds of failure to state a cause of action and the absence of any privity between respondents and petitioner. Trial Court issued the writ of preliminary injunction and denied PNB’s motion to dismiss. In the impugned decision, the CA dismissed the petition for certiorari and prohibition.

ISSUE:

Whether or not PNB is privy to the loan contracts entered into by respondent & PNB-IFL.

RULING:
...The contract questioned is one entered into between responded and PNB-IFL. Petitioner was admittedly an agent of the latter who acted as an agent with limited authority and specific duties under a special power of attorney incorporated in the real estate mortgage. It is not privy to the loan contracts entered into by them. Yet, despite the recognition that PNB is a mere agent, the respondents, in their complaint, prayed that PNB be ordered to recompute the scheduling accordance with the terms and conditions in the documents evidencing the credit facilities, and crediting the amount previously paid to PNB by respondent.

The mere fact that a corporation owns all of the stocks of another corporation, taken alone is not sufficient to justify their being treated as one entity. If used to perform legitimate functions, a subsidiary’s separate existence may be respected, and the liability of the parent corporation as well as the subsidiary will be confined to those arising in their respective business. The courts may, in the exercise of judicial discretion, step in to prevent the abuses of separate entity privilege and pierce the veil of corporate entity.

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Filipinas Broadcasting vs. Ago Medical Center

GRN 141994 January 17, 2005

Carpio, J.:

FACTS:

Rima & Alegre were host of FBNI radio program “Expose”. Respondent Ago was the owner of the Medical & Educational center, subject of the radio program “Expose”. AMEC claimed that the broadcasts were defamatory and owner Ago and school AMEC claimed for damages. The complaint further alleged that AMEC is a reputable learning institution. With the supposed expose, FBNI, Rima and Alegre “transmitted malicious imputations and as such, destroyed plaintiff’s reputation. FBNI was included as defendant for allegedly failing to exercise due diligence in the selection and supervision of its employees. The trial court found Rima’s statements to be within the bounds of freedom of speech and ruled that the broadcast was libelous. It ordered the defendants Alegre and FBNI to pay AMEC 300k for moral damages.”

ISSUE:

Whether or not AMEC is entitled to moral damages.

RULING:

A juridical person is generally not entitled to moral damages because, unlike a natural person, it cannot experience physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish or moral shock. Nevertheless, AMEC’s claim, or moral damages fall under item 7 of Art – 2219 of the NCC.

This provision expressly authorizes the recovery of moral damages in cases of libel, slander or any other form of defamation. Art 2219 (7) does not qualify whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as a corporation can validly complain for libel or any other form of defamation and claim for moral damages. Moreover, where the broadcast is libelous per se, the law implied damages. In such a case, evidence of an honest mistake or the want of character or reputation of the party libeled goes only in mitigation of damages. In this case, the broadcasts are libelous per se. thus, AMEC is entitled to moral damages. However, we find the award P500,000 moral damages unreasonable. The record shows that even though the broadcasts were libelous, per se, AMEC has not suffered any substantial or material damage to its reputation. Therefore, we reduce the award of moral damages to P150k.

v JOIN TORT FEASORS are all the persons who command, instigate, promote, encourage, advice countenance, cooperate in, aid or abet the commission of a tort, as who approve of it after it is done, for its benefit.

=======================

Mangila vs. CA/Loreta Guina

GRN – 125027 August 12, 2002

Carpio, J.:

FACTS:

Petitioner Mangila hired the freight service of private respondent Guina for the importation of seafoods to USA. Petitioner failed to pay the services rendered by Air Swift International a business operating under the sole proprietorship of Guina. The latter filed a case for collection of money but summons were unsuccessfully served thus a writ of Preliminary Attachment was issued. Petitioner filed a motion to discharge without submitting herself to the jurisdiction of the court. The CA upheld the validity of the issuance of the writ attachment and sustained the filing of the case in Pasay as the proper venue, despite stipulation in the contract that in case of complaints, cases should be filed in Makati City. Pasay City is the office location of Air Swift.

ISSUE:

Whether or not the venue of the swift was properly laid when it was filed in Pasay City where the sole proprietorship business of the respondent was located.

RULING:

A mere stipulation on the venue of an action is not enough to preclude the parties from bringing a case in other venues. The partiers must be able to show that the stipulation is exclusive. In the present case… there are no qualifying or restrictive words in the invoice that would evince the intention of the parties that Makati is the only or exclusive venue where the action would be instituted. Nevertheless, we hold that Pasay is not the proper venue.

In this case it was established that petitioner resides in Pampanga while respondent resides in Parañaque. The case was filed in Pasay where the business is located.

A sole proprietorship does not possess a juridical personality separate and distinct from the personality of the owner of the enterprise… The law does not vest a separate legal personality on the sole proprietorship to empower it to file or defend an action in court. Thus, not being vested with legal personality to file this case, the sole proprietorship is not the plaintiff but Guina herself.

Alvarez vs. Ramirez

GRN 143439

Sandoval – Gutierrez, J.;

FACTS:

Petition for review on certiorari assailing the decision of the CA for allowing the testimony of petitioner’s wife in a criminal proceeding where petitioner was accused for ransom. Private prosecutor in the said criminal case called the petitioner’s wife without objection from petitioner’s counsel. Wife testified that it was her estranged husband who poured and set the house of her sister on fire. A motion to disqualify the testimony of his wife was filed pursuant to rules on martial disqualification.

ISSUE:

Whether or not the wife can testify against her husband in a criminal case.

RULING:

The reason for the rule on martial disqualification are:

1. There is identity of interests between husband and wife;

2. If one were to testify for or against the other, there is consequent danger of perjury;

3. The policy of the law is to guard the security and confidence of private life, even at the risk of an occasional failure of justice and to prevent domestic disunion and unhappiness;

4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.

The offense of arson attributed to the husband impairs the conjugal relation between him and his wife. His act eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes… the evidence and facts presented reveal that the preservation of the marriage between petitioner and his wife is no longer an interest the State aims to protect.

=========================

Dasmariñas Garments vs. Reyes/American Pres. Lines

GRN 108229 August 24, 1993

Narvasa, J.;

FACTS:

APL sued Dasmariñas Garments for sum of money at the hearing. Instead of presenting its witness, APL filed a motion praying that it intended to take the depositions of some Taiwan nationals. The lower court granted the deposition which was in compliance with the rules on taking of testimony by deposition upon written interrogatories under ROC. CA affirmed.

ISSUE:

Whether or not a party could present its evidence by taking the deposition of its witness in a foreign jurisdiction before a private entity.

RULING:

Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in court. Depositions are principally made by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party witness. Leave of court is not necessary where the deposition is to be taken before a secretary or embassy or legation, consul gen. etc., and the defendants answer has already been served.

Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition. Taking only to the period of pre-trial or before it; no prohibition against the taking of deposition after pre-trial… the law authorizes the taking of depositions before or after an appeal is taken from the judgment of RTC “to perpetuate their testimony for use in event of further proceedings in court… or during the process of execution of a final and executor judgment.”

==========================

Jonathan Landoil vs. Mangudadatu

GRN 155010 August 16, 2001

Panganiban, J.;

FACTS:

Respondents filed a complaint for damages against petitioner in the lower court. Trial proceeded without the participation of petitioner and declared it in default. Petitioner filed a motion for new trial but was denied. When the writ of execution was served, petitioner alleged that it is yet to receive the order of denial for the motion for new trial. A petition for prohibition was filed with CA and respondents submitted its opposition and attached to their pleading is a certification that the order denying the motion for new trial was no longer available for a deposition since trial, had already been terminated. It also opined that the alleged error committed by the trial court of disregarding the oral depositions, was certiorari or prohibition.

ISSUE:

Whether or not the taking of oral deposition was proper under the circumstances.

RULING:

(A motion for new trial may be filed on the grounds of 1) fraud, accident, mistake or excusable negligence that could not have been guarded against ordinary prudence, and by reason of which the aggrieved party’s rights have probably been impaired; 2) newly discovered evidence, that, with reasonable diligence,. The aggrieved party could not have discovered and produced at the trial; 3) and that if presented, would probably alter the result.)

A deposition may be taken with leave of court after jurisdiction has been obtained over any defendant or over property that is the subject of the action; or without such leave after an answer has been served. In keeping with the principle of promoting the just, speedy and inexpensive disposition of every action and proceeding, depositions are allowed as a departure from the accepted and usual judicial proceedings of examining witness in open court where demeanor could be observed by the trial judge.

As a rule, depositions should be allowed absent any showing that taking them would prejudice any party.

TORTS

Sarkies Tours vs. CA, Fortades et al.

GRN 108897 October 2, 1997

Romero, J.;

FACTS:

Private respondent Fortades boarded Sarkies Bus No. 5 with 3 luggages containing important things including documents. All were kept in the baggage compartment of the bus but during stopover, only one bag was recovered by Fortades and a case to recover the value of the other bags as well as moral and exemplary damages for litigation. Lower court decided favorably to Fortades but CA eliminated moral exemplary damages.

ISSUE:

Whether or not private respondent was entitled to moral and exemplary damages.

RULING:

The court agrees with the CA in awarding 30,000 for the lost items and 30,000 for the deletion of award of moral and exemplary damages which, in view of the foregoing proven facts, with negligence and bad faith, on the fault of petitioner having been established, should be granted to respondents.

TORTS

Sarkies Tours vs. IAC

Melencio-Herrera, J.;

FACTS:

Petitioner Sarkies advertised for a Corregidor tour for Independence Day, Dizon and 4 children availed of the promo and were issued receipt under the Sarkies letterhead. Part of the trip was a boat-ride going to Corregidor. Mendoza, owner of a motorized was not authorized to operate a watercraft. The boat capsized and one of the children of Dizons died. Dizons filed a complaint against Sarkies and Mendoza. The lower court exonerated Sarkies from liability and attributed sole responsibility to Mendoza. CA reversed the decision and held both Sarkies and Mendoza liable, for the reason that the relationship between Sarkies and the excursionists was “a single operation which in effect guaranteed them safe passage all throughout. Exemplary damages was awarded.

ISSUE:

Whether or not exemplary damages was awarded in accordance with law.

RULING:

The award of exemplary damages should be elimiminated. In Munsayac vs. De Lara 23 SCRA 1086 (1968) it was said:

“it is not enough to say that an example should be made, or corrective measures be employed, for the public especially in accident cases where public carriers are involved. The causative negligence in such cases is personal to the employees actually in charged of the vehicles, and it is they who should be made to pay this kind of damages by way of example or correction, unless by the demonstrative tolerance or approval of the owners, they themselves can be held at fault and their fault is in the character described in 2232 CC.”

In the present case, there is no showing that Sarkies acted “in a negligent... or malevolent manner.”

International Exchange Bank vs. CIR
GRN 171266/520 SCRA 688 April 4, 2007
Carpio-Morales; J.;
FACTS:
An examination of book of accounts of the bank resulted to an assessment of tax liabilities of the latter amounting to P465,158,118.31 for 1996 and P17,033,311,974.23 for 1997. Details of PAN included: Savings-Deposit-ESO amounting to P9,845,800.27 should be treated as time deposits considering that its features are very much the same as time deposits... subject to DST. CTA ordered payment of DST on SA-FSD.

ISSUE:
Whether or not SA-FSD evidenced by a passbook is subject to DST?

RULING:
As correctly found by CTA, En Bans, a passbook representing an interest earning deposit account issued by a bank qualifies as a certificate of deposit earning interest.
In this case, a depositor of savings deposit FSD is required to keep the money with the bank for at least 30 days in order to yield a higher interest pertaining only to a regular savings deposit… the only difference lies on the evidence of deposits a SA-FSD is evidence by a passbook, while a time deposit is evidence by a certificate of time deposit.

===========================
Marcos II vs. CA/CIR
GRN 120880 June 5, 1997
Torres, J.:

FACTS:
After the death of former President Marcos, Special audit team disclosed that Marcoses failed to file a written notice of the death of the decedent, an estate tax returns as well as several income tax returns covering the years 1982 to 1986. BIR issued deficiency estate tax assessment among others and were personally and constructively served to the last known address of Marcoses. No administrative protest were served by Imelda or the heir of the late President, thus notices of levy on real property were issued. Having no response, properties were awarded in favor of the government. Marcos II questioned the levy assailing that said properties were under probate hearing thus, should not be summarily levied by BIR.

ISSUE:
Whether or not the BIR has authority to collect by the summary remedy of levying upon, and sale of real properties of the decedent, estate tax deficiencies, without the cognition and authority of the court sitting in probate over the supposed will of the deceased.

RULING:
The approval of the curt, sitting in probate, or as a settlement tribunal over the deceased is not a mandatory requirement in the collection of estate taxes… there is nothing in the tax code, and in the pertinent remedial laws that implies the necessity of the probate or estate settlement court’s approval of the state’s claim for the estate taxes, before the same can be enforced and collected. If there is any issue as to the validity of the BIR’s decision to assess the estate taxes, this should have been pursued through the proper administrative and judicial avenues provided for by law.

Even an assessment based on the estimate is prima facie valid and lawful where it does not appear to have been arrived at arbitrarily or capriciously. The burden of proof is upon the complaining party to show clearly that the assessment is erroneous.

NB: The nature of the process of estate tax collection
…the inheritance tax does not directly involve the administration of the decedent’s estate although it may be viewed as an incident to the complete settlement of an estate, and under some statutes, it is made the duty of the probate court to make the amount of the inheritance tax a part of the final decree of distribution of the estate. It is not against the property of decedent, nor it is a claim against the estate as much, but it is against the interest or property right which the heir… has in the property formerly held by decedent… it is a proceeding in rem.

=======================

CIR vs. Solid Bank
GRN 148191 November 25, 2003
Panganiban, J.;

FACTS:
Solid Bank declared gross receipts included the amount from passive income which was already subjected to 20% final withholding tax (FWT). CTA affirmed that the 20% FWT should not form part of its taxable gross receipts for purpose of computing the gross receipts tax on such basis, Bank filed a request for refund. CTA ordered the refund while CA held that indeed, the 20% FWT on a bank’s interest income does not form part of the taxable gross receipts in computing the 5% GRT because the FWT was not actually received by the bank, but was directly remitted to the government.

ISSUE:
Whether or not the 20% FWT on a bank’s interest income forms part of the taxable gross receipts in computing the 5% gross receipts tax.

RULING:
In China Banking vs. CA, this Court ruled that the amount interest income withheld in payment of 20% FWT forms part of the gross receipts in computing for the GRT on banks.
A percentage tax is a national tax measured by a certain percentage of the gross selling price or gross value in money of goods sold, bartered or imported; or of the gross receipts or earnings derived by any person engaged in the sale of services. It is not subject to withholding.
An income tax is national tax imposed on the net or the gross income realized in a taxable year.

It is subject to withholding.
In a withholding tax system, the payee is the taxpayer, the person on whom tax is reposed, the payer, a separate entity, acts as no more than an agent of the government for the collection of taxes… Possession is acquired by the payer as the withholding agent of the government because the taxpayer ratifies the very act of possession for the government. There is constructive receipt, of such income and is included as part of the tax base.


=========================
China Bank vs CA

GRN 125508 July 19, 2000
Vitug, J.:

FACTS:
Petitioner CBC made a 53% equity investment in the First CBC, a Hongkong subsidiary engaged in financing and investment with “deposit-taking” function. First, CBC became insolvent and with approval from Bangko Sentral, petitioner wrote-off as being worthless its investment in First CBC, and its 1987 Income Tax Return, it treated as bad credit or an ordinary loss deductible from its gross income. CIR disallowed the deduction on the ground that although 1st CBC ceased to be a deposit-taking company, still it can exercise its financing and investment activities. Assuming that it become “worthless”, it should have been a capital loss, and not as a bad debt expense, there being no indebtedness to speak of between petitioner and its subsidiary.

ISSUE:
Whether or not “securities becoming worthless” be allowed as deduction from gross income of CBC.

RULING:
An equity investment is a capital, not ordinary asset of the investor, the sale or exchange in which results in either a capital gain or capital loss. The gain or loss is ordinary when the property sold or exchanged is not a capital asset. Sec 29 of NIRC on securities becoming worthless during the tax year are capital assets, the loss resulted therefrom shall be considered as a loss from the sale or exchange, on the last day of such taxable year, of capital assets.

A capital gain or a capital loss normally requires the concurrence of two conditions for it to result: 1) there is a sale or exchange; 2) the thing sold or exchanged is a capital asset. Capital losses are allowed to be deducted only to the extent of capital gains, e.i. gains derived from the sale or exchange of capital assets, and not from any other income of the taxpayer… any capital loss can be deducted only from capital gains.

======================
AFISCO Insurance et al vs. CA/CTA/CIR
GRN 112675 January 25, 1999
Panganiban, J.:

FACTS:
The 41 non-life insurance corporation entered into a Qouta Share Reinsurance Treaty with Munich, non-resident corporation. The reinsurance treaty required petitioners to form a pool. CA ruled that the pool of machinery was a partnership taxable as a corporation, and that the latter’s collection of premiums on behalf of its members was taxable income.

ISSUE:
Whether or not the “insurance” pool be taxable as an incorporation and its remittances be taxable as dividends.

RULING:
The Philippine legislative included in the concept of corporation those entities that resembled them such as unregistered partnerships and associations. Section 24 covered unregistered partnerships and even associations and joint accounts, which had no legal personalities apart from their individual members.
The term “partnership” includes a syndicate group, pool, joint venture or other unincorporated organization, through or by means of which any business financial operation or venture is carried on.
The pool is taxable entity distinct from the individual corporate entities of the insurance companies. The tax on income is different from the tax on dividends received by said companies, thus no double taxation.

In light of the present disasters that our neighbor Indonesia is going through, I am prompted to write my entry for tonight. Looking at the images of what has happened in Indonesia lately, I can't help but recall he same disasters that struck our country almost 2 decades ago. There was an earthquake then the eruption of Mt. Pinatubo. It was really devastating!

My heart and prayers go to our neighboring country, Indonesia. Somehow, I can't explain how sad it must be to lose someone, or even something, including your home, a place we thought we are safe. But with the forces of nature, only God can give the assurance that we are safe.

My prayer and my song, the Our Father.

Our Father, who art in heaven

hollowed be thy name, thy kingdom come.

Thy will be done on earth, as it is in heaven

Give us this day, our daily bread

And forgive us our sins

As we forgive those who had sinned against us

Do not bring us to the test but deliver us from evil

Amen.

Valenzuela vs. CA

GRN 131175 August 28, 2001

Buena, J.;

FACTS:

Private respondent de Guia spouses filed a complaint for specific performance against herein petitioner for the latter to execute a deed of sale in favor of the former. Valenzuela had sold the property to Quiason spouses thus, de Guia amended the complaint impleading the Quiason as defendant including other parties who may have acquired rights or interest in said property. RTC denied for its inclusion thus this petition for Certiorari.

ISSUE:

Whether or not an amendment be allowed in as much as it radically and substantially change the cause of action and theory of the case.

RULING:

Under Section 3, Rule 10 is not under the new rule that “the amendment may (now) substantially alter the cause of action or defense.” This should only be true when despite a substantial change or alteration in the cause of action or defense, the amendments sought to be made shall serve the higher interests of substantial justice, and prevent delay and equally promote the landable objectives of the rules which is to secure a just, speedy and inexpensive disposition of every action and proceeding.

Vda de Caruzo vs. Carriaga Jr.

GRN 75109-10 June 28, 1989

Regalado, J.;

FACTS:

Petitioners are children of Gabina Machoca. The latter had her land mortgaged to Ang for 425 pesos. An additional sum of P175 was again barrowed, total amount borrowed was P600. Gabina noticed that the instrument was a contract of sale and demanded a reformation from Ang. The latter prepared a deed of agreement stipulating among others that Ang obligates himself to resell the property to the vendor within 3 years for the same amount. Before that 3 years, Ang transferred the lot title to his name. Petitioners remained in possession of the lot until 1977 (since 1954). Respondents filed an unlawful detainer case and received a favorable order. During the pendency of the case, petitioners Special Civil Case for removal of cloud on the title. The complaint was dismissed on the ground of res judicata.

ISSUE:

Whether or not res judicata is present in the case.

RULING:

The doctrine of res judicata lays down two main rules: (1) the judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribemal or, (BAR BY FORMER JUDGMENT. (2) any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which judgment or decree is rendered on the merit is conclusively settled by the judgment therein and cannot be again litigated between the parties and their privies whether or not the claim, or demand, purpose or subject matter of the two suits are the same. (CONCLUSIVENESS OF JUDGMENT)

The following requisites must concur for R.J. a) the former judgment or order must be final b) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; d) there must be, between the first and second actions, identity of parties, of subject matter and cause of action.

The dismissed or removal of cloud had become final for failure of petitioners to appeal. While the dismissed was for failure to prosecute, it had the effect of the adjudication on the merits since the court did not direct that the dismissed was without prejudice.

Lechugas vs. CA

GRN L-39972 & L-40300

August 6, 1986

FACTS:

Petitioner filed an unlawful entry case against private respondent “the Loza’s”. Another case was filed for recovery and possession of the same property and both cases was tried jointly. Petitioner testified that she bought the land from Lasangue in 1950. Private respondent contended that the same land in question was bought by their father from the father of petitioner in 1941. Plaintiff’s vendor testified for the defendant stating that she sold the south part of the land which is lot 5522 not lot 5456 which plaintiff claims.

IISUE:

Whether or not the court of appeals erred in considering, parol evidence over the objection of petitioner.

RULING:

The appellate court acted correctly in upholding the trial court’s action in admitting the testimony of Leoncia. Petitioner alleges that lot 5522 was sold to her by Leonora, not Leoncia, who was never presented as witness in any proceeding in the lower court… the parol evidence rule does not apply and may not properly be involved by either party to litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to a written instrument in the question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby.

The rule is not applicable where the controversy is between one of the parties to the document and third persons. Through the testimony of Leoncia, it was shown that what she really intended to sell is lot 5522 but not being able to read and write and fully relying on the good faith of her cousin, petitioner, she just placed her thumb mark on a piece of paper.

Nollen vs. COMELEC/Caballes

GRN 187635

January 11, 2010

Velasco, J.;

FACTS:

Petitioners Nollen and private respondents Caballes were candidates for Punong barangay in the October 2007 barangay elections. Nollen was declared punong barangay-elect. Caballes protested and MTC declared Caballes the punong barangay elect for having 5 votes more than Nollen. The latter filed an appeal to MTC and paid P1,000 and records were elevated to COMELEC where its first decision dismissed the case for failure to pay 3,000 prescribed by COMELEC’s rules on procedure. MR also denied.

ISSUE:

Whether or not COMELEC erred in dismissing the appeal for failure of paying appeal fee.

RULING:

The payment of the appeal fee within 5 days technically perfects the appeal from the trial court’s decision. Such appeal is not dismissible as a matter of course on account alone of the inadequate payment or non payment of the 3,200 filing fee. The legal situation changes if the appellant fails to pay the amount within 15 days from receipt of notice from COMELEC. Nollen’s appeal may validly be viewed as not fatally belated. COMELEC resolution 8654 is applicable to his appeal, as the appeal was on June 5, 2008 or prior to July 24, 2008 when the more stringent Resolution 8486 took effect.

Martinez III vs. HRET/Salimbangon

GEN 189034

January 11, 2010

Villarama; J.;

FACTS:

This is a petition for certiorari under Rule 65. Petitioner filed an election protest to HRET against private respondent, the latter being declared as the representative – elect of Cebu after the May 2007 elections. One Edelito C. Martinez, who had the same last name as that of petitioner was declared nuisance candidate long after the May 2007 elections was over. His name, therefore was not removed from the ballots and that ballots bearing the name “C. Martinez” or “Martinez” considered stray by BEI. The HRET refused to credit the 5,401 voters to petitioner on the ground that there was no way of determining the real intention of the voter.

ISSUE:

Whether nor not ballots containing similar surname of two candidates be considered as stray votes or counted in favor of the bona fide candidate.

RULING:

The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate.

In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of 2 candidates may generate. A nuisance candidate is defined as one, who based on the attendant circumstance, has no bona fide intention to run for office for which the COC has been filed, his sole purpose being the reduction of votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them.

We therefore hold that ballots indicating only the similar surname of 2 candidates for the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray even if the other candidate was declared a nuisance candidate by final judgment after elections… petitioner thus garnered more votes than respondent…

Marbella – Bobis vs. Bobis

GRN 138509 July 31, 2000

336 SCRA 747

Ynares –Santiago, J.:

FACTS:

Respondent contracted his second marriage to petitioners notwithstanding the subsistence of a previous marriage. A third marriage was allegedly contracted by respondent thus petitioner filed for a bigamy case. Thereafter, respondent filed an action for the absolute nullity of his first marriage on the ground that it was celebrated without a marriage license.

ISSUE:

Whether or not the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes prejudicial question.

RULING:

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case.

In this case, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge.

==============================

Beltran vs. PP/Judge Juazon

GRN 137567 334 SCRA 106

Buena, J.:

FACTS:

Petitioner filed a petition for nullity of marriage against her wife for 24 years. Wife answered that it was petitioner who left the family house and lived with a paramour. A concubinage case was filed by wife and petitioner argued that the pendency of a case for declaration of nullity of marriage posed a prejudicial question.

ISSUE:

Whether or not pendency of the case for nullity of marriage a prejudicial question to the concubinage case.

RULING:

The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: 1) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and 2) the resolution of such issue determines whether or not the criminal action may proceed.

In the criminal case of concubinage, the accused need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of the nullity of his marriage other than proof of a final judgment declaring his marriage void.

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Prado vs. PP/Judge Sison

GRN – L – 17652 December 26, 1984

133 SCRA 602

Melencio-Herrera, J.;

FACTS:

On August 5, 1971, Petitioner was charged with the crime of bigamy, where she contracted a second marriage in Vietnam. Petitioner moved to dismiss on jurisdiction grounds but was denied. Petition for certiorari and prohibition were with S.C. but the same was dismissed for being premature. In 1973, petitioner filed for annulment of her second marriage reasoning that her consent thereto was obtained through force.

ISSUE:

Whether or not a pending suit for annulment of marriage constitutes prejudicial question in a bigamy case.

RULING:

For a civil action to be considered prejudicial, the following requisites must be present: 1) the civil case involved facts intimately related to those upon which the criminal prosecution would be based; 2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; 3) jurisdiction to try said question musty be lodged in another tribunal.

But the mere filing of an annulment case does not give rise to a prejudicial questions.

Republic of the Philippines vs. CA/Morato

GRN 100709 November 14,1997

Panganiban, J.;

FACTS:

In December 1972, respondent Morato filed a free patent application on a parcel of land which was granted but with the condition that the land shall not be alienated or encumbered within five years from the date of issuance of the patent. Respondent mortgaged a portion of property in 1974 and another portion was based to another party whereby a house and warehouse were respectively constructed. RTC and CA found that there was alienation because the land was merely based adding that the improvement and not the land itself.

ISSUE:

Whether or not the base and/or mortgage of a portion of realty acquired through free patent constitute sufficient ground for the nullification of such land grant.

RULING:

Public Land Act, Sec 118 states:

“Except in favor of Government or any of its branches… lands, acquired under free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application for a term of five years from and after the date of issuance of the patent or grant nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period.”

Encumbrance has been defined as “anything that impairs the use or transfer of property; anything which constitutes a burden on the title; a burden or charge upon property; a claim or lien upon property.”

Respondent Morato, although the land mortgaged/leased does not significantly affect his possession and ownership, cannot fully use or enjoy the land during the duration of lease contract. The prohibition against any alienation or encumbrance of the land grant is a proviso attached to the approval of every application. Prior to the fulfillment of the requirements of law, Morato had only an inchoate right to the property; such property remained a public domain and therefore not susceptible to alienation or encumbrance.

Music sometimes makes us cry, smile or even groove. For me, the real essence of music is to give strength and inspiration to many people. Music also is to give strength and to listen to. I know we have our own personality, interests, goals, likes and dislike in life but I do believe that when it comes to music, we Filipinos unite for the reason that most of us really love music because we can related and reflect with it, in relations to our life experiences.

Since I was seven or eight years old, aside from dancing, I also loved singing. Until now, I still sing because I can express my feelings and emotions through singing. y favorite song is reach for the Sky sang by our very own popular song Princess, Ms. Sarah Asher Tua Geronimo. I love that song because of the lyrics and its meaning that touches my heart.

This song is all about a person who has a dream in life that he wants to fulfill. the case is he encountered troubles in life like many people pulling him down. Even though that happens, that person never stopped trusting himself and capabilities to succeed in life. No matter what people say or do, he does not give and keep on moving and aiming high through his faith, positivity, courage, passions and beliefs that he will help him to make all things possible.

reach for the sky is one of my favorite songs, for the reason that I can relate to it. I have goals in life that I want to achieve such as: becoming a successful media practitioner and to be happy. However, there are hindrances that I'm encountering.

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The lyrics (From Metrolyrics.com):

I have a dream
Something that I wanted to achieve
In my lifetime
And I want to show
The best of me, I know I'll make it through
If I believe that

Refrain
I can make it happen
No matter what they say
Nobody can stand in my way

Chorus
Reach for the sky
Dream and aim high
I won't anybody turn my spirit down
Whatever it takes
I'll stand on my faith
I'll never stop until I reach the sky
I know my dreams will happen, I can fly

I'll reach for the sky

I will not give up
Even if I fall I won't give in
To my troubles
I will stand tall
My feet firmly standin' on the road
I believe that

Refrain
I can make it happen

[ From: http://www.metrolyrics.com/reach-for-the-sky-lyrics-sarah-geronimo.html ]

No matter what they say
Nobody can stand in my way

Chorus
Reach for the sky
Dream and aim high
I won't anybody turn my spirit down
Whatever it takes
I'll stand on my faith
I'll never stop until I reach the sky
I know my dreams will happen, I can fly

Reach for the sky
No matter what they say
No matter what they do
I'll hold on and make it through

Chorus
Reach for the sky
Dream and aim high
I won't anybody turn my spirit down
Whatever it takes
I'll stand on my faith
I'll never stop until I reach the sky
I know my dreams will happen, I can fly

Reach for the sky