Monday, January 18, 2016

Negotiorum gestio



Negotiorum gestio is a form of spontaneous agency in which an agent, the gestor, acts on behalf and for the benefit of a principal, but without his or her consent, though the action is later ratified by the principal. The gestor is only entitled to reimbursement for expenses and not to remuneration, the underlying principle being that negotiorum gestio is intended as an act of generosity and friendship and not to allow the gestor to profit from his agency. This form of agency is found in civil law countries and in Scots law.
It originated as a Roman legal institution in which an individual acted on behalf of another, without his asking and without remuneration. It was considered a part of officium (duty), for instance, to defend a friend's or neighbor's interests while the friend or neighbor was away.[1]
The principal, or dominus, more fully dominus negotiorum dominus rei gestae, is bound to indemnify the gestor for the expenses and liabilities incurred.



EN BANC
G.R. No. L-12289             May 28, 1958
LIM SIOK HUEY, ET AL., plaintiffs-appellants,
vs.
ALFREDO LAPIZ, ET AL., defendants-appellees.
Godofredo C. Montesines and Alfonso E. Generoso for appellants.
Tengco Rosales for appellees Vicente Reyes and Lazaro Limjuco.

BAUTISTA ANGELO, J.:
This is an action to recover damages amounting to P83,701.30 filed in the Court of First Instance of Laguna. The plaintiffs are Lim Siok Huey, Pua Yek Ben, Pua Chok Ben, Pua Sam Ben and Pua Go Kuan, the first being the surviving spouse and the last four the surviving children of Chua Pua Lun, represented by their counsel, and the defendants are Alfredo Lapiz, Victorino Sapin, Vicente Reyes and Lazaro Limjuco. The damages are claimed by reason of the death of Chua Pua Lun as a result of a collision suffered by the jeepney in which he was a passenger.
Defendant Alfredo Capiz, the driver of the driver of the Jaguar jeepney, in answer to the complaint, alleged that the vehicle driven by him was hit by the Kapalaran bus which was driven by defendant Vicente Reyes due to the negligence of the latter, thereby causing the death of Chua Pua Lun who was a passenger of the jeepney. Defendant Victorino Sapin in turn alleged that he was not the owner of the jeepney driven by Lapiz, while defendants Vicente Reyes and Lazaro Limjuco, the first as driver and the second as owner of the bus, alleged that the collision between the two vehicles was due to the negligence of Alfredo Lapiz.
Plaintiffs Pua Sam Ben and Pua Go Kuan, being minors, the court, upon motion of their counsel, appointed Chua Pua Tam, a brother of the deceased, as guardian ad litem to represent them in this case.
After trial, the court rendered decision "dismissing the complaint, defendant Lapiz cross-claim against defendants Reyes and Limjuco as well as the counterclaim of these last two named defendant against the plaintiff and their cross-claim against defendants Lapiz and Sapin." Plaintiffs appealed directly to this Court in view of the amount involved.
In dismissing the complaint, the trial court made the following pronouncement:
Notwithstanding the above conclusion, the Court is however, of the opinion that the present action cannot be maintained not on the ground invoked by the defendants but on the theory that the plaintiffs have not authorized anyone to file the complaint against the defendants. While an attorney representing a client `in a case pending in Court is presumed to be authorized for the purpose, nevertheless in the case under consideration, such presumption had been destroyed and overcome by the very evidence presented by counsel himself. The plaintiffs are all citizens and residents of Communist China and they have not communicated with anyone in the Philippines in connection with the filing of an action for damages in their behalf arising from the death of Chua Pau Lun. Chua Pua Tam, who is the brother-in-law of the first plaintiff and uncle of the others, testified that the plaintiffs had not written to him nor had he communicated with them. The letters supposedly sent to Lim Ping Kok by his sister Lim Sick Huey (Exh. J) and his mother (Exh. K) did not contain any intimation much less of an authorization for the filing of a claim for damages in behalf of the widow and children of the deceased, Chua Pua Lun, against the parties responsible for his death. Under this situation, the Court has no other alternative but to dismiss the complaint on the ground that the evidence on record does not show that the plaintiffs have authorized much less directed the commencement of the present action.
Appellants now contend that the trial court erred (1) in finding that plaintiffs, being residents of Communist China, have not authorized anyone to file the present case against the defendants; (2) in dismissing the complaint when the authority to prosecute the case stems from the appointment of Chua Pua Tam as guardian ad litem of minors Pua Sam Ben and Pua Go Kuan; (3) in dismissing the case when the same could be considered as prosecuted by a negotiorum gestor and (4) in finding that there was no authority to file the case when such question was not raised in issue nor was evidence adduced on the point.
With regard to the first question, we find no error in the findings made by the trial court. Indeed, the same is supported by the record and the evidence. Thus, it appears that the plaintiffs who are the widow and children of the deceased Chua Pua Lun are all citizens and residents of Communist China and notwithstanding the fact that they have been informed of the death of the deceased, they have not sent any communication to anyone in the Philippines giving authority to take whatever action may be proper to obtain an indemnity for his death other than two letters supposedly sent to Lim Ping Kok by his sister Lim Siok Huey and his mother, which do not contain any intimation nor authorization for the filing of the present action. The most that they contain was an inquiry with regard to the progress of the case and the administration of the duck-raising business which the deceased left in the Philippines. Such certainly cannot be considered as an authority to the present counsel to file and prosecute the present case in behalf of the widow and children now residing in Communist China.
It should be noted that the present action was initiated by plaintiffs represented merely by their counsel and the question arose as to whether the latter had the proper authority to represent the former in view of the fact that they are all residents of a foreign country. And the question was properly raised in view of the rule that, while a lawyer is presumed to be properly authorized to represent any cause in which he appears, he may however be required by the court on motion of either party to produce his authority under which he appears (Section 20, Rule 127). Undoubtedly, the question was properly raised by counsel for the defendants as otherwise the trial court would not have given proper attention to the matter. Indeed, on this point, the trial court made this important comment: "While an attorney representing a client in a case pending in Court is presumed to be authorized for the purpose, nevertheless in the case under consideration, such presumption had been destroyed and come by the very evidence presented by counsel himself ." (Emphasis supplied)
It is true that one Chua Pua Tam was appointed as guardian ad litem of two of plaintiffs who allegedly are minors to represent them in the prosecution of the present case, but while this representation may only benefit the minors, and not the other plaintiffs, yet the same would not suffice to meet the requirement of the rule which provides that every action must be prosecuted in the name of the real party in interest (Section 2, Rule 3). Again, we need hereto show that Chua Pua Tam was authorized by the heirs abroad to act as such in behalf of the minors for it was in this belief that he was so appointed by the trial court. But when in the course of the," trial it developed that he never had any communication with any of the heirs and much less received any authority from them either to prosecute this case or to act, as such guardian in behalf of the minors, the trial court lost no time in disauthorizing him and considering his representation ineffective. Thus, on this point, the trial court said: "Chua Pua Tam, who is the brother-in law of the first plaintiff and uncle of the others, testified that the plaintiffs had not written to him nor had he communicated with them. The letters supposedly sent to Lim Ping Kok by his sister Lim Siock Huey (Exh. J) and his mother (Exh. K) did not contain any intimation much less an authorization for the filing of the claim for damages in behalf of the widow and children of the deceased."
Nor can the claim that Chua Pua Tam can be considered as negotiorum gestor be entertained because in the present case there is need of express authority on his part to represent the minors by virtue of an express provision of our Rules of Court. In negotiorum gestio no such authority is required.
The contention that the trial court considered the issue regarding the lack of authority on the part of counsel to represent plaintiffs in this case or of Chua Pua Tam to act as guardian ad litem of the minors even if the same was not raised by any of the opposing parties or their counsel, cannot be entertained, it appearing that the same was expressly raised by defendants Reyes and Limjuco not only in the course of the trial but in their answers. Moreover, this flaw in the case of the plaintiffs was discovered by the court in the course of the trial in view of the evidence presented by the very counsel of plaintiffs. In view of such development, the trial court could not but take notice of the matter considering the prayer in defendants' answer that they be given "such reliefs as this Court may deem just and equitable in the premises.".
Wherefore, the decision appealed from in so far as it the complaint is hereby affirmed, with costs against appellants.
Paras, C.J., Montemayor, Reyes, A., Labrador, Concepcion, Endencia and Felix, JJ., concur.

Separate Opinions
REYES, J.B.L., J., concurring:
I concur, but with respect to the issue of negotiorum gestio my position is that the same can not exist where the authority of the alleged gestor is disputed. This quasi-contract presupposes, that the gestor's authority is taken for granted by the persons with whom he deals, although in fact he has not been legally empowered by the one in whose behalf he presumes to act.
THIRD DIVISION

G.R. No. 97995 January 21, 1993
PHILIPPINE NATIONAL BANK, petitioner,
vs.
COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.
Roland A. Niedo for petitioner.
Benjamin C. Santos Law Office for respondent.

ROMERO, J.:
Rarely is this Court confronted with a case calling for the delineation in broad strokes of the distinctions between such closely allied concepts as the quasi-contract called "solutio indebiti" under the venerable Spanish Civil Code and the species of implied trust denominated "constructive trusts," commonly regarded as of Anglo-American origin. Such a case is the one presented to us now which has highlighted more of the affinity and less of the dissimilarity between the two concepts as to lead the legal scholar into the error of interchanging the two. Presented below are the factual circumstances that brought into juxtaposition the twin institutions of the Civil Law quasi-contract and the Anglo-American trust.
Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing goods and services to shipping companies. Since 1966, it has acted as a manning or crewing agent for several foreign firms, one of which is Star Kist Foods, Inc., USA (Star Kist). As part of their agreement, Mata makes advances for the crew's medical expenses, National Seaman's Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs. Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn reimburses Mata by sending a telegraphic transfer through banks for credit to the latter's account.
Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los Angeles which had an agency arrangement with Philippine National Bank (PNB), transmitted a cable message to the International Department of PNB to pay the amount of US$14,000 to Mata by crediting the latter's account with the Insular Bank of Asia and America (IBAA), per order of Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International Department noticed an error and sent a service message to SEPAC Bank. The latter replied with instructions that the amount of US$14,000 should only be for US$1,400.
On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the amount of US$1,400 (P9,772.95) representing reimbursement from Star Kist, was issued by the Star Kist for the account of Mata on February 25, 1975 through the Insular Bank of Asia and America (IBAA).
However, fourteen days after or on March 11, 1975, PNB effected another payment through Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60) purporting to be another transmittal of reimbursement from Star Kist, private respondent's foreign principal.
Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of US$14,000 (P97,878.60) after it discovered its error in effecting the second payment.
On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata arguing that based on a constructive trust under Article 1456 of the Civil Code, it has a right to recover the said amount it erroneously credited to respondent Mata. 1
After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling that the instant case falls squarely under Article 2154 on solutio indebiti and not under Article 1456 on constructive trust. The lower court ruled out constructive trust, applying strictly the technical definition of a trust as "a right of property, real or personal, held by one party for the benefit of another; that there is a fiduciary relation between a trustee and a cestui que trust as regards certain property, real, personal, money or choses in action." 2
In affirming the lower court, the appellate court added in its opinion that under Article 2154 on solutio indebiti, the person who makes the payment is the one who commits the mistake vis-a-vis the recipient who is unaware of such a mistake. 3 Consequently, recipient is duty bound to return the amount paid by mistake. But the appellate court concluded that petitioner's demand for the return of US$14,000 cannot prosper because its cause of action had already prescribed under Article 1145, paragraph 2 of the Civil Code which states:
The following actions must be commenced within six years:
xxx xxx xxx
(2) Upon a quasi-contract.
This is because petitioner's complaint was filed only on February 4, 1982, almost seven years after March 11, 1975 when petitioner mistakenly made payment to private respondent.
Hence, the instant petition for certiorari proceeding seeking to annul the decision of the appellate court on the basis that Mata's obligation to return US$14,000 is governed, in the alternative, by either Article 1456 on constructive trust or Article 2154 of the Civil Code on quasi-contract. 4
Article 1456 of the Civil Code provides:
If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.
On the other hand, Article 2154 states:
If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.
Petitioner naturally opts for an interpretation under constructive trust as its action filed on February 4, 1982 can still prosper, as it is well within the prescriptive period of ten (10) years as provided by Article 1144, paragraph 2 of the Civil Code. 5
If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive period for quasi-contracts of six years applies, as provided by Article 1145. As pointed out by the appellate court, petitioner's cause of action thereunder shall have prescribed, having been brought almost seven years after the cause of action accrued. However, even assuming that the instant case constitutes a constructive trust and prescription has not set in, the present action has already been barred by laches.
To recall, trusts are either express or implied. While express trusts are created by the intention of the trustor or of the parties, implied trusts come into being by operation of law. 6 Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties. 7
In turn, implied trusts are subdivided into resulting and constructive trusts. 8 A resulting trust is a trust raised by implication of law and presumed always to have been contemplated by the parties, the intention of which is found in the nature of the transaction, but not expressed in the deed or instrument of conveyance. 9 Examples of resulting trusts are found in Articles 1448 to 1455 of the Civil Code. 10 On the other hand, a constructive trust is one not created by words either expressly or impliedly, but by construction of equity in order to satisfy the demands of justice. An example of a constructive trust is Article 1456 quoted above. 11
A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense 12 for in a typical trust, confidence is reposed in one person who is named a trustee for the benefit of another who is called the cestui que trust, respecting property which is held by the trustee for the benefit of the cestui que trust. 13 A constructive trust, unlike an express trust, does not emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a trustee are linked by confidential or fiduciary relations, in a constructive trust, there is neither a promise nor any fiduciary relation to speak of and the so-called trustee neither accepts any trust nor intends holding the property for the beneficiary. 14
In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent of holding the same for a supposed beneficiary or cestui que trust, namely PNB. But under Article 1456, the law construes a trust, namely a constructive trust, for the benefit of the person from whom the property comes, in this case PNB, for reasons of justice and equity.
At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.
Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts: negotiorum gestio and solutio indebiti. But the Code Commission, mindful of the position of the eminent Spanish jurist, Manresa, that "the number of quasi contracts may be indefinite," added Section 3 entitled "Other Quasi-Contracts." 15
Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding article provides that: "The provisions for quasi-contracts in this Chapter do not exclude other quasi-contracts which may come within the purview of the preceding article." 16
Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship, there being neither crime nor quasi-delict, a quasi-contractual relation may be forced upon the parties to avoid a case of unjust enrichment. 17 There being no express consent, in the sense of a meeting of minds between the parties, there is no contract to speak of. However, in view of the peculiar circumstances or factual environment, consent is presumed to the end that a recipient of benefits or favors resulting from lawful, voluntary and unilateral acts of another may not be unjustly enriched at the expense of another.
Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in Article 2154 that something (in this case money) has been received when there was no right to demand it and (2) the same was unduly delivered through mistake. There is a presumption that there was a mistake in the payment "if something which had never been due or had already been paid was delivered; but he from whom the return is claimed may prove that the delivery was made out of liberality or for any other just cause." 18
In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No. 269522 had already been made by PNB for the account of Mata on February 25, 1975. Strangely, however, fourteen days later, PNB effected another payment through Cashier's Check No. 270271 in the amount of US$14,000, this time purporting to be another transmittal of reimbursement from Star Kist, private respondent's foreign principal.
While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated in the subject on quasi-contracts in Title XVI of Book IV of the Spanish Civil Code entitled "Obligations incurred without contract," 19 the chapter on Trusts is fairly recent, having been introduced by the Code Commission in 1949. Although the concept of trusts is nowhere to be found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied trusts, which includes constructive trusts, on top of quasi-contracts, both of which embody the principle of equity above strict legalism. 20
In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence on the subject. Under American Law, a court of equity does not consider a constructive trustee for all purposes as though he were in reality a trustee; although it will force him to return the property, it will not impose upon him the numerous fiduciary obligations ordinarily demanded from a trustee of an express trust. 21 It must be borne in mind that in an express trust, the trustee has active duties of management while in a constructive trust, the duty is merely to surrender the property.
Still applying American case law, quasi-contractual obligations give rise to a personal liability ordinarily enforceable by an action at law, while constructive trusts are enforceable by a proceeding in equity to compel the defendant to surrender specific property. To be sure, the distinction is more procedural than substantive. 22
Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer as a "quasi-contract," so far removed are they from trusts and contracts proper, respectively. In the case of a constructive trust, as in the case of quasi-contract, a relationship is "forced" by operation of law upon the parties, not because of any intention on their part but in order to prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of the parties. 23
Although we are not quite in accord with the opinion that "the trusts known to American and English equity jurisprudence are derived from the fidei commissa of the Roman Law," 24 it is safe to state that their roots are firmly grounded on such Civil Law principles are expressed in the Latin maxim, "Nemo cum alterius detrimento locupletari potest," 25 particularly the concept of constructive trust.
Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a constructive trust or the quasi-contract of solutio indebiti, it has been deprived of a choice, for prescription has effectively blocked quasi-contract as an alternative, leaving only constructive trust as the feasible option.
Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that in Article 1456 the recipient commits the mistake while in Article 2154, the recipient commits no mistake. 26 On the other hand, private respondent, invoking the appellate court's reasoning, would impress upon us that under Article 1456, there can be no mutual mistake. Consequently, private respondent contends that the case at bar is one of solutio indebiti and not a constructive trust.
We agree with petitioner's stand that under Article 1456, the law does not make any distinction since mutual mistake is a possibility on either side — on the side of either the grantor or the grantee. 27 Thus, it was error to conclude that in a constructive trust, only the person obtaining the property commits a mistake. This is because it is also possible that a grantor, like PNB in the case at hand, may commit the mistake.
Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it erroneously paid private respondent under a constructive trust, we rule in the negative. Although we are aware that only seven (7) years lapsed after petitioner erroneously credited private respondent with the said amount and that under Article 1144, petitioner is well within the prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's claim cannot prosper since it is already barred by laches. It is a well-settled rule now that an action to enforce an implied trust, whether resulting or constructive, may be barred not only by prescription but also by laches. 28
While prescription is concerned with the fact of delay, laches deals with the effect of unreasonable delay. 29 It is amazing that it took petitioner almost seven years before it discovered that it had erroneously paid private respondent. Petitioner would attribute its mistake to the heavy volume of international transactions handled by the Cable and Remittance Division of the International Department of PNB. Such specious reasoning is not persuasive. It is unbelievable for a bank, and a government bank at that, which regularly publishes its balanced financial statements annually or more frequently, by the quarter, to notice its error only seven years later. As a universal bank with worldwide operations, PNB cannot afford to commit such costly mistakes. Moreover, as between parties where negligence is imputable to one and not to the other, the former must perforce bear the consequences of its neglect. Hence, petitioner should bear the cost of its own negligence.
WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private respondent is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bidin, Davide, Jr. and Melo, JJ., concur.
Gutierrez, Jr., J., concurs in the result.

# Footnotes
1 Records, p. 122.
2 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
3 Rollo, p. 41.
4 Rollo, p. 27.
5 Article 1144. The following actions must be brought within ten years from the time the right of action accrues:
xxx xxx xxx
(2) Upon an obligation created by law;
xxx xxx xxx
6 Article 1441, Civil Code.
7 89 CJS 724.
8 89 CJS 722.
9 89 CJS 725.
10 Aquino, Civil Code, Vol. II. pp. 556-557; Ramos v. Ramos, G.R. No. L-19872, December 3, 1974, 61 SCRA 284.
11 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
12 Ramos v. Ramos, G.R. No. L-19872 December 3, 1974, 61 SCRA 284, citing Gayondato v. Treasurer of the Philippine Islands, 49 Phil. 244.
13 State ex Wirt v. Superior Court for Spokane Country, 10 Wash. 2d, 362, 116 P. 2d 752, 755, Article 1440 Civil Code.
14 Diaz v. Goricho, 103 Phil. 261.
15 Report of the Code Commission, p. 60.
16 Article 2143, Civil Code.
17 Report of the Code Commission, pp. 159-160.
18 Article 2163, Civil Code.
19 Lao Chit v. Security and Trust Co. and Consolidated Investment, Inc., 105 Phil. 490.
20 Report of the Code Commission, p. 26.
21 Scott on Trusts, Volume 3, p. 2315.
22 Ibid, p. 2312.
23 Scott on Trusts, Volume 3, p. 2316.
24 Government v. Abadilla, 46 Phil. 642 and Miguel et al v. Court of Appeals,
L-20274, October 30, 1969, 29 SCRA 760.
25 Translated as, "No one should be allowed to enrich himself unjustly at the expense of another." (Jenk Cent. Cas. 4; 10 Barb. [N.Y.] 626, 633, "Cyclopedic Law Dictionary," 2nd Edition, p. 688).
26 Rollo, p. 32.
27 Tolentino, Civil Code of the Philippines, Vol. IV, p. 685.
28 Villagonzalo v. IAC, G.R. No. 711110, November 22, 1988, 167 SCRA 535; Perez v. Ong Chua, No. L-36850, September 23, 1982, 116 SCRA 732, 90 CJS 887-889 and 54 Am Jur., pp. 449-450.
29 Mapa III v. Guanzon, G.R. No. L-25605, June 20, 1977, 77 SCRA 387.

SECOND DIVISION



YUN KWAN BYUNG, 
                                     Petitioner,




            - versus -




PHILIPPINE AMUSEMENT AND GAMING CORPORATION,
                                  Respondent.
G.R. No. 163553

Present:

CARPIO, J., Chairperson,
CARPIO MORALES,*
LEONARDO-DE CASTRO,**
DEL CASTILLO, and
  ABAD, JJ.


Promulgated:

December 11, 2009

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


D E C I S I O N

CARPIO, J.:


The Case

          Yun Kwan Byung (petitioner) filed this Petition for Review[1][1] assailing the Court of Appeals’ Decision[2][2] dated 27 May 2003 in CA-G.R. CV          No. 65699 as well as the Resolution[3][3] dated 7 May 2004 denying the Motion for Reconsideration. In the assailed decision, the Court of Appeals (CA) affirmed the Regional Trial Court’s Decision[4][4] dated  6 May 1999. The Regional Trial Court of Manila, Branch 13 (trial court), dismissed petitioner’s demand against respondent Philippine Amusement and Gaming Corporation (PAGCOR) for the redemption of gambling chips. 

The Facts

          PAGCOR is a government-owned and controlled corporation tasked to establish and operate gambling clubs and casinos as a means to promote tourism and generate sources of revenue for the government.  To achieve these objectives, PAGCOR is vested with the power to enter into contracts of every kind and for any lawful purpose that pertains to its business. Pursuant to this authority, PAGCOR launched its Foreign Highroller Marketing Program (Program). The Program aims to invite patrons from foreign countries to play at the dollar pit of designated PAGCOR-operated casinos under specified terms and conditions and in accordance with industry practice.[5][5] 

          The Korean-based ABS Corporation was one of the international groups that availed of the Program. In a letter-agreement dated 25 April 1996 (Junket Agreement), ABS Corporation agreed to bring in foreign players to play at the five designated gaming tables of the Casino Filipino Silahis at the Grand Boulevard Hotel in Manila (Casino Filipino). The relevant stipulations of the Junket Agreement state:

1.                                                   PAGCOR will provide ABS Corporation with separate  junket chips.  The junket chips will be distinguished from the chips being used by other players in the gaming tables.
      ABS Corporation will distribute these junket chips to its players and at the end of the playing period, ABS Corporation will collect the junket chips from its players and make an accounting to the casino treasury.
2.                                              ABS Corporation will assume sole responsibility to pay the winnings of its foreign players and settle the collectibles from losing players.
3.                                                   ABS Corporation shall hold PAGCOR absolutely free and harmless from any damage, claim or liability which may arise from any cause in connection with the Junket Agreement.
5.     In providing the gaming facilities and services to these foreign players, PAGCOR is entitled to receive from ABS Corporation a 12.5% share in the gross winnings of ABS Corporation or 1.5 million US dollars, whichever is higher, over a playing period of 6 months. PAGCOR has the option to extend the period.[6][6]     

          Petitioner, a Korean national, alleges that from November 1996 to March 1997, he came to the Philippines four times to play for high stakes at the Casino Filipino.[7][7] Petitioner claims that in the course of the games, he was able to accumulate gambling chips worth US$2.1 million. Petitioner presented as evidence during the trial gambling chips with a face value of US$1.1 million.  Petitioner contends that when he presented the gambling chips for encashment with PAGCOR’s employees or agents, PAGCOR refused to redeem them.[8][8] 

          Petitioner brought an action against PAGCOR seeking the redemption of gambling chips valued at US$2.1 million. Petitioner claims that he won the gambling chips at the Casino Filipino, playing continuously day and night. Petitioner alleges that every time he would come to Manila, PAGCOR would extend to him amenities deserving of a high roller. A PAGCOR official who meets him at the airport would bring him to Casino Filipino, a casino managed and operated by PAGCOR. The card dealers were all PAGCOR employees, the gambling chips, equipment and furnitures belonged to PAGCOR, and PAGCOR enforced all the regulations dealing with the operation of foreign exchange gambling pits. Petitioner states that he was able to redeem his gambling chips with the cashier during his first few winning trips.  But later on, the casino cashier refused to encash his gambling chips so he had no recourse but to deposit his gambling chips at the Grand Boulevard Hotel’s deposit box, every time he departed from Manila.[9][9]

          PAGCOR claims that petitioner, who was brought into the Philippines by ABS Corporation, is a junket player who played in the dollar pit exclusively leased by ABS Corporation for its junket players. PAGCOR alleges that it provided ABS Corporation with distinct junket chips. ABS Corporation distributed these chips to its junket players. At the end of each playing period, the junket players would surrender the chips to ABS Corporation. Only ABS Corporation would make an accounting of these chips to PAGCOR’s casino treasury.[10][10] 

          As additional information for the junket players playing in the gaming room leased to ABS Corporation, PAGCOR posted a notice written in English and Korean languages which reads:

NOTICE
 This GAMING ROOM is exclusively operated by ABS under arrangement with PAGCOR, the former is solely accountable for all PLAYING CHIPS wagered on the tables. Any financial  ARRANGEMENT/TRANSACTION between PLAYERS and ABS shall only be binding upon said PLAYERS and ABS.[11][11] 

          PAGCOR claims that this notice is a standard precautionary measure[12][12] to avoid confusion between junket players of ABS Corporation and PAGCOR’s players.

          PAGCOR argues that petitioner is not a PAGCOR player because under PAGCOR’s gaming rules, gambling chips cannot be brought outside the casino. The gambling chips must be converted to cash at the end of every gaming period as they are inventoried every shift. Under PAGCOR’s rules, it is impossible for PAGCOR players to accumulate two million dollars worth of gambling chips and to bring the chips out of the casino premises.[13][13] 
         
          Since PAGCOR disclaimed liability for the winnings of players recruited by ABS Corporation and refused to encash the gambling chips, petitioner filed a complaint for a sum of money before the trial court.[14][14] PAGCOR filed a counterclaim against petitioner. Then, trial ensued.

          On 6 May 1999, the trial court dismissed the complaint and counterclaim. Petitioner appealed the trial court’s decision to the CA. On    27 May 2003, the CA affirmed the appealed decision. On 27 June 2003, petitioner moved for reconsideration which was denied on 7 May 2004.

          Aggrieved by the CA’s decision and resolution, petitioner elevated the case before this Court.  



The Ruling of the Trial Court

          The trial court ruled that based on PAGCOR’s charter,[15][15] PAGCOR has no authority to lease any portion of the gambling tables to a private party like ABS Corporation. Section 13 of Presidential Decree No. 1869 or the PAGCOR’s charter states:

           Sec. 13. Exemptions -
                   x x x
(4)   Utilization of Foreign Currencies – The Corporation shall have the right and authority, solely and exclusively in connection with the operations of the casino(s), to purchase, receive, exchange and disburse foreign exchange, subject to the following terms and conditions:
(a) A specific area in the casino(s) or gaming pit shall be put up solely and exclusively for players and patrons utilizing foreign currencies;
(b) The Corporation shall appoint and designate a duly accredited commercial bank agent of the Central Bank, to handle, administer and manage the use of foreign currencies in the casino(s);
(c) The Corporation shall provide an office at casino(s) exclusively for the employees of the designated bank, agent of the Central Bank, where the Corporation shall maintain a dollar account which will be utilized exclusively for the above purpose and the casino dollar treasury employees;
(d) Only persons with foreign passports or certificates of identity (for Hong Kong patron only) duly issued by the government or country of their residence will be allowed to play in the foreign exchange gaming pit;
(e) Only foreign exchange prescribed to form part of the Philippine International Reserve and the following foreign exchange currencies: Australian Dollar, Singapore Dollar, Hong Kong Dollar, shall be used in this gaming pit;
(f) The disbursement, administration, management and recording of foreign exchange currencies used in the casino(s) shall be carried out in accordance with existing foreign exchange regulations, and periodical reports of the transactions in such foreign exchange currencies by the Corporation shall be duly recorded and reported to the Central Bank thru the designated Agent Bank; and


(g) The Corporation shall issue the necessary rules and regulations for the guidance and information of players qualified to participate in the foreign exchange gaming pit, in order to make certain that the terms and conditions as above set forth are strictly complied with.
         
          The trial court held that only PAGCOR could use foreign currency in its gaming tables. When PAGCOR accepted only a fixed portion of the dollar earnings of ABS Corporation in the concept of a lease of facilities, PAGCOR shared its franchise with ABS Corporation in violation of the PAGCOR’s charter. Hence, the Junket Agreement is void. Since the Junket Agreement is not permitted by PAGCOR’s charter, the mutual rights and obligations of the parties to this case would be resolved based on agency and estoppel.[16][16] 
           
          The trial court found that the petitioner wanted to redeem gambling chips that were specifically used by ABS Corporation at its gaming tables. The gambling chips come in distinctive orange or yellow colors with stickers bearing denominations of 10,000 or 1,000. The 1,000 gambling chips are smaller in size and the words “no cash value” marked on them. The 10,000 gambling chips do not reflect the “no cash value” sign.  The senior treasury head of PAGCOR testified that these were the gambling chips used by the previous junket operators and PAGCOR merely continued using them. However, the gambling chips used in the regular casino games were of a different quality.[17][17]

          The trial court pointed out that PAGCOR had taken steps to warn players brought in by all junket operators, including ABS Corporation, that they were playing under special rules. Apart from the different kinds of gambling chips used, the junket players were confined to certain gaming rooms. In these rooms, notices were posted that gambling chips could only be encashed there and nowhere else. A photograph of one such notice, printed in Korean and English, stated that the gaming room was exclusively operated by ABS Corporation and that ABS Corporation was solely accountable for all the chips wagered on the gaming tables. Although petitioner denied seeing this notice, this disclaimer has the effect of a negative evidence that can hardly prevail against the positive assertions of PAGCOR officials whose credibility is also not open to doubt. The trial court concluded that petitioner had been alerted to the existence of these special gambling rules, and the mere fact that he continued to play under the same restrictions over a period of several months confirms his acquiescence to them. Otherwise, petitioner could have simply chose to stop gambling.[18][18]
           
          In dismissing petitioner’s complaint, the trial court concluded that petitioner’s demand against PAGCOR for the redemption of the gambling chips could not stand. The trial court stated that petitioner, a stranger to the agreement between PAGCOR and ABS Corporation, could not under principles of equity be charged with notice other than of the apparent authority with which PAGCOR had clothed its employees and agents in dealing with petitioner. Since petitioner was made aware of the special rules by which he was playing at the Casino Filipino, petitioner could not now claim that he was not bound by them. The trial court explained that in an unlawful transaction, the courts will extend equitable relief only to a party who was unaware of all its dimensions and whose ignorance of them exposed him to the risk of being exploited by the other. Where the parties enter into such a relationship with the opportunity to know all of its ramifications, as in this case, there is no room for equitable considerations to come to the rescue of any party. The trial court ruled that it would leave the parties where they are.[19][19] 

The Ruling of the Court of Appeals

          In dismissing the appeal, the appellate court addressed the four errors assigned by petitioner.
           
          First, petitioner maintains that he was never a junket player of ABS Corporation. Petitioner also denies seeing a notice that certain gaming rooms were exclusively operated by entities under special agreement.[20][20]
           
          The CA ruled that the records do not support petitioner’s theory. Petitioner’s own testimony reveals that he enjoyed special accommodations at the Grand Boulevard Hotel. This similar accommodation was extended to players brought in by ABS Corporation and other junket operators. Petitioner cannot disassociate himself from ABS Corporation for it is unlikely that an unknown high roller would be accorded choice accommodations by the hotel unless the accommodation was facilitated by a junket operator who enjoyed such privilege.[21][21]
           
          The CA added that the testimonies of PAGCOR’s employees affirming  that notices were posted in English and Korean in the gaming areas are credible in the absence of any convincing proof of ill motive. Further, the specified gaming areas used only special chips that could be bought and exchanged at certain cashier booths in that area.[22][22] 
           
          Second, petitioner attacks the validity of the contents of the notice. Since the Junket Agreement is void, the notice, which was issued pursuant to the Junket Agreement, is also void and cannot affect petitioner.[23][23] 
         
          The CA reasoned that the trial court never declared the notice valid and neither did it enforce the contents thereof. The CA emphasized that it was the act of cautioning and alerting the players that was upheld. The trial court ruled that signs and warnings were in place to inform the public, petitioner included, that special rules applied to certain gaming areas even if the very agreement giving rise to these rules is void.[24][24] 

          Third, petitioner takes the position that an implied agency existed between PAGCOR and ABS Corporation.[25][25] 
           
          The CA disagreed with petitioner’s view. A void contract has no force and effect from the very beginning. It produces no effect either against or in favor of anyone. Neither can it create, modify or extinguish the juridical relation to which it refers. Necessarily, the Junket Agreement, being void from the beginning, cannot give rise to an implied agency. The CA explained that it cannot see how the principle of implied agency can be applied to this case. Article 1883[26][26] of the Civil Code applies only to a situation where the agent is authorized by the principal to enter into a particular transaction, but instead of contracting on behalf of the principal, the agent acts in his own name.[27][27] 
           
          The CA concluded that no such legal fiction existed between PAGCOR and ABS Corporation. PAGCOR entered into a Junket Agreement  to lease to ABS Corporation certain gaming areas. It was never PAGCOR’s  intention to deal with the junket players. Neither did PAGCOR intend ABS Corporation to represent PAGCOR in dealing with the junket players. Representation is the basis of agency but unfortunately for petitioner none is found in this case.[28][28] 

          The CA added that the special gaming chips, while belonging to PAGCOR, are mere accessories in the void Junket Agreement with ABS Corporation. In Article 1883, the phrase “things belonging to the principal” refers only to those things or properties subject of a particular transaction authorized by the principal to be entered into by its purported agent. Necessarily, the gambling chips being mere incidents to the void lease agreement cannot fall under this category.[29][29]

          The CA ruled that Article 2152[30][30] of the Civil Code is also not applicable. The circumstances relating to negotiorum gestio are non-existent to warrant an officious manager to take over the management and administration of PAGCOR.[31][31] 

          Fourth, petitioner asks for equitable relief.[32][32]

          The CA explained that although petitioner was never a party to the void Junket Agreement, petitioner cannot deny or feign blindness to the signs and warnings all around him. The notices, the special gambling chips, and the separate gaming areas were more than enough to alert him that he was playing under different terms. Petitioner persisted and continued to play in the casino. Petitioner also enjoyed the perks extended to junket players of ABS Corporation. For failing to heed these signs and warnings, petitioner can no longer be permitted to claim equitable relief. When parties do not come to court with clean hands, they cannot be allowed to profit from their own wrong doing.[33][33]

The Issues
         
          Petitioners raise three issues in this petition:

1. Whether the CA erred in holding that PAGCOR is not liable to petitioner, disregarding the doctrine of implied agency, or agency by estoppel;
2. Whether the CA erred in using intent of the contracting parties as the test for creation of agency, when such is not relevant since the instant case involves liability of the presumed principal in implied agency to a third party; and
3. Whether the CA erred in failing to consider that PAGCOR ratified, or at least adopted, the acts of the agent, ABS Corporation.[34][34] 

The Ruling of the Court


          The petition lacks merit.

Courts will not enforce debts arising from illegal gambling

          Gambling is prohibited by the laws of the Philippines as specifically provided in Articles 195 to 199 of the Revised Penal Code, as amended. Gambling is an act beyond the pale of good morals,[35][35] and is thus prohibited and punished to repress an evil that undermines the social, moral, and economic growth of the nation.[36][36]  Presidential Decree No. 1602 (PD 1602),[37][37] which modified Articles 195-199 of the Revised Penal Code and repealed inconsistent provisions,[38][38] prescribed stiffer penalties on illegal gambling.[39][39] 

          As a rule, all forms of gambling are illegal. The only form                 of gambling allowed by law is that stipulated under Presidential Decree    No. 1869, which gave PAGCOR its franchise to maintain and operate gambling casinos. The issue then turns on whether PAGCOR can validly share its franchise with junket operators to operate gambling casinos in the country. Section 3(h) of PAGCOR’s charter states:

            Section 3. Corporate Powers. - The  Corporation shall have the  following powers and functions, among others:

            x x x
                        h) to enter into, make, perform, and carry out contracts of        every kind and for any lawful purpose pertaining to the business of the Corporation, or in any manner incident thereto, as principal, agent or    otherwise, with any person, firm, association, or corporation.
            x x x

The Junket Agreement would  be  valid  if under Section 3(h) of  PAGCOR’s charter,  PAGCOR  could  share  its  gambling  franchise with another entity. In Senator Jaworski v. Phil. Amusement and Gaming Corp.,[40][40] the Court discussed the extent of the grant of the legislative franchise to PAGCOR on its authority to operate gambling casinos:

     A legislative franchise is a special privilege granted by the state    to corporations. It is a privilege of public concern which cannot be          exercised at will and pleasure, but should be reserved for public control and administration, either by the government directly, or by public agents, under such conditions and regulations as the government may impose     on them in the interest of the public. It is Congress that prescribes          the   conditions on which the grant of the franchise may be made. Thus the manner of granting the franchise, to whom it may be granted, the mode of conducting the business, the charter and the quality of the service             to be rendered and the duty of the grantee to the public in exercising the franchise are almost always defined in clear and unequivocal language.
     After a circumspect consideration of the foregoing discussion      and the contending positions of the parties, we hold that PAGCOR has acted beyond the limits of its authority when it passed on or shared its franchise to SAGE.
     In the Del Mar case where a similar issue was raised when      PAGCOR entered into a joint venture agreement with two other entities   in the operation and management of jai alai games, the Court, in an En Banc Resolution dated 24 August 2001, partially granted the motions     for clarification filed by respondents therein insofar as it prayed that  PAGCOR has a valid franchise, but only by itself (i.e. not in association with any other person or entity), to operate, maintain and/or manage the game of jai-alai.
     In the case at bar, PAGCOR executed an agreement with SAGE whereby the former grants the latter the authority to operate and maintain sports betting stations and Internet gaming operations. In essence, the grant of authority gives SAGE the privilege to actively participate, partake and share PAGCOR’s franchise to operate a gambling activity. The     grant of franchise is a special privilege that constitutes a right and a duty to be performed by the grantee. The grantee must not perform its activities arbitrarily and whimsically but must abide by the limits set by its franchise and strictly adhere to its terms and conditionalities. A corporation as a creature of the State is presumed to exist for the common good. Hence, the special privileges and franchises it receives are subject to the laws of the State and the limitations of its charter. There is therefore a reserved right of the State to inquire how these privileges had been employed, and whether they have been abused. (Emphasis supplied)
Thus, PAGCOR has the sole and exclusive authority to operate a gambling activity. While PAGCOR is allowed under its charter to enter into operator’s or management contracts, PAGCOR is not allowed under the same charter to relinquish or share its franchise. PAGCOR cannot delegate its power in view of the legal principle of delegata potestas delegare non potest, inasmuch as there is nothing in the charter to show that it has been expressly authorized to do so.[41][41]


Similarly, in this case, PAGCOR, by taking only a percentage of the earnings of ABS Corporation from its foreign currency collection, allowed ABS Corporation to operate gaming tables in the dollar pit. The Junket Agreement is in direct violation of PAGCOR’s charter and is therefore void.

Since the Junket Agreement violates PAGCOR’s charter, gambling  between the junket player and the junket operator under such agreement is illegal and may not be enforced by the courts. Article 2014[42][42] of the Civil Code, which refers to illegal gambling, states that no action can be maintained by the winner for the collection of what he has won in a game of chance.

Although not raised as an issue by petitioner, we deem it necessary to discuss the applicability of Republic Act No. 9487[43][43] (RA 9487) to the present case.
RA 9487 amended the PAGCOR charter, granting PAGCOR the power to enter into special agreement with third parties to share the privileges under its franchise for the operation of gambling casinos:

                        Section 1. The   Philippine   Amusement  and Gaming  Corporation    (PAGCOR)  franchise  granted  under   Presidential  Decree  No. 1869  otherwise known as the PAGCOR Charter, is hereby further amended to read as follows:
            x x x
                        (2) Section 3(h) is hereby amended to read as follows:
                 “SEC. 3. Corporate Powers. -
               x x x
“(h) to enter into, make, conclude, perform, and carry out contracts of every kind and nature and for any lawful purpose which are necessary, appropriate, proper or incidental to any business or purpose of the PAGCOR, including but not limited to investment agreements, joint venture agreements, management agreements, agency agreements, whether as principal or as an agent, manpower supply agreements, or any other similar agreements or arrangements with any person, firm, association or corporation.” (Boldfacing supplied)

PAGCOR sought the amendment of its charter precisely to address and remedy the legal impediment raised in Senator Jaworski v. Phil. Amusement and Gaming Corp.

Unfortunately for petitioner, RA 9487 cannot be applied to the present case. The Junket Agreement was entered into between PAGCOR and ABS Corporation on 25 April 1996 when the PAGCOR charter then prevailing (PD 1869) prohibited PAGCOR from entering into any arrangement with a third party that would allow such party to actively participate in the casino operations.


It is a basic principle that laws should only be applied prospectively unless the legislative intent to give them retroactive effect is expressly declared or is necessarily implied from the language used.[44][44] RA 9487 does not provide for any retroactivity of its provisions. All laws operate prospectively absent a clear contrary language in the text,[45][45] and that in every case of doubt, the doubt will be resolved against the retroactive operation of laws.[46][46] 

Thus, petitioner cannot avail of the provisions of RA 9487 as this was not the law when the acts giving rise to the claimed liabilities took place. This makes the gambling activity participated in by petitioner illegal. Petitioner cannot sue PAGCOR to redeem the cash value of the gambling chips or recover damages arising from an illegal activity for two reasons. First, petitioner engaged in gambling with ABS Corporation and not with PAGCOR. Second, the court cannot assist petitioner in enforcing an illegal act. Moreover, for a court to grant petitioner’s prayer would mean enforcing the Junket Agreement, which is void.   

          Now, to address the issues raised by petitioner in his petition, petitioner claims that he is a third party proceeding against the liability of a presumed principal and claims relief, alternatively, on the basis of implied agency or agency by estoppel.  

Article 1869 of the Civil Code states that implied agency is derived from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority. Implied agency, being an actual agency, is a fact to be proved by deductions or inferences from other facts.[47][47]
           On the other hand, apparent authority is based on estoppel and can arise from two instances. First, the principal may knowingly permit the agent to hold himself out as having such authority, and the principal becomes estopped to claim that the agent does not have such authority. Second, the principal may clothe the agent with the indicia of authority as to lead a reasonably prudent person to believe that the agent actually has such authority.[48][48] In an agency by estoppel, there is no agency at all, but the one assuming to act as agent has apparent or ostensible, although not real, authority to represent another.[49][49]


The law makes no presumption of agency and proving its existence, nature and extent is incumbent upon the person alleging it.[50][50] Whether or not an agency has been created is a question to be determined by the fact that one represents and is acting for another. [51][51]

Acts and conduct of PAGCOR negates the existence of an implied agency or an agency by estoppel
         
          Petitioner alleges that there is an implied agency. Alternatively, petitioner claims that even assuming that no actual agency existed between PAGCOR and ABS Corporation, there is still an agency by estoppel based on the acts and conduct of PAGCOR showing apparent authority in favor of ABS Corporation. Petitioner states that one factor which distinguishes agency from other legal precepts is control and the following undisputed facts show a relationship of implied agency:

1.      Three floors of the Grand Boulevard Hotel[52][52] were leased to PAGCOR for conducting gambling operations;[53][53]

2.      Of the three floors, PAGCOR allowed ABS Corporation to use one whole floor for foreign exchange gambling, conducted by PAGCOR dealers using PAGCOR facilities, operated by PAGCOR employees and using PAGCOR chips bearing the PAGCOR logo;[54][54] 

3.       PAGCOR controlled the release, withdrawal and return of all the gambling chips given to ABS Corporation in that part of the casino and at the end of the day, PAGCOR conducted an inventory of the gambling chips;[55][55] 

4.      ABS Corporation accounted for all gambling chips with the Commission on Audit (COA), the official auditor of PAGCOR;[56][56]

5.      PAGCOR enforced, through its own manager, all the rules and regulations on the operation of the gambling pit used by ABS Corporation.[57][57]


          Petitioner’s argument is clearly misplaced. The basis for agency is representation,[58][58] that is, the agent acts for and on behalf of the principal on matters within the scope of his authority and said acts have the same legal effect as if they were personally executed by the principal.[59][59] On the part of the principal, there must be an actual intention to appoint or an intention naturally inferable from his words or actions, while on the part of the agent, there must be an intention to accept the appointment and act on it.[60][60] Absent such mutual intent, there is generally no agency.[61][61]

There is no implied agency in this case because PAGCOR did not hold out to the public as the principal of ABS Corporation. PAGCOR’s actions did not mislead the public into believing that an agency can be implied from the arrangement with the junket operators, nor did it hold out ABS Corporation with any apparent authority to represent it in any capacity. The Junket Agreement was merely a contract of lease of facilities and services.

The players brought in by ABS Corporation were covered by a different set of rules in acquiring and encashing chips. The players used a different kind of chip than what was used in the regular gaming areas of PAGCOR, and that such junket players played specifically only in the third floor area and did not mingle with the regular patrons of PAGCOR. Furthermore, PAGCOR, in posting notices stating that the players are playing under special rules, exercised the necessary precaution to warn the gaming public that no agency relationship exists.

For the second assigned error, petitioner claims that the intention of the parties cannot apply to him as he is not a party to the contract.

We disagree. The Court of Appeals correctly used the intent of the contracting parties in determining whether an agency by estoppel existed in this case. An agency by estoppel, which is similar to the doctrine of apparent authority requires proof of reliance upon the representations, and that, in turn, needs proof that the representations predated the action taken in reliance.[62][62] 

There can be no apparent authority of an agent without acts or conduct on the part of the principal and such acts or conduct of the principal must have been known and relied upon in good faith and as a result of the exercise of reasonable prudence by a third person as claimant, and such must have produced a change of position to its detriment.[63][63] Such proof is lacking in this case.

In the entire duration that petitioner played in Casino Filipino, he was dealing only with ABS Corporation, and availing of the privileges extended only to players brought in by ABS Corporation. The facts that he enjoyed special treatment upon his arrival in Manila and special accommodations in Grand Boulevard Hotel, and that he was playing in special gaming rooms are all indications that petitioner cannot claim good faith that he believed he was dealing with PAGCOR. Petitioner cannot be considered as an innocent third party and he cannot claim entitlement to equitable relief as well.

For his third and final assigned error, petitioner asserts that PAGCOR ratified the acts of ABS Corporation.

 The trial court has declared, and we affirm, that the Junket Agreement is void. A void or inexistent contract is one which has no force and effect from the very beginning. Hence, it is as if it has never been entered into and cannot be validated either by the passage of time or by ratification.[64][64]  Article 1409 of the Civil Code provides that contracts expressly prohibited or declared void by law, such as gambling contracts, “cannot be ratified.”[65][65] 






          WHEREFORE, we DENY the petition. We AFFIRM the Court of Appeals’ Decision dated 27 May 2003 as well as the Resolution dated 7 May 2004 as modified by this Decision.
         
          SO ORDERED.




                                       ANTONIO T. CARPIO
                                             Associate Justice

WE CONCUR:




          CONCHITA CARPIO MORALES
      Associate Justice





TERESITA  J. LEONARDO-DE CASTRO
    Associate Justice

   MARIANO C. DEL CASTILLO     
    Associate Justice




 
                                     
ROBERTO A. ABAD
Associate Justice


ATTESTATION
          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.



                                                    ANTONIO T. CARPIO
                                                                   Associate Justice
                            Chairperson

CERTIFICATION
          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.



                                                                    REYNATO S. PUNO
                                                                          Chief Justice
           


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-24137 January 30, 1970
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
PEDRO C. HERNAEZ and RAMON M. DE LA RAMA, defendants-appellees.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Esmeraldo Umali, Solicitor Ricardo Pronove, Jr. and Special Attorney Maria C. Paraiso for plaintiff appellant.
Pedro C. Hernaez and Ramon M. de la Rama for their own behalf defendants-appellees.

BARREDO, J.:
Appeal by the Government from the decision of the Court of First Instance of Manila in its Civil Case No. 50010 — a suit filed by the Republic of the Philippines against Pedro C. Hernaez and Ramon M. de la Rama for collection of certain loans obtained from the Bank of Taiwan, Ltd., during the Japanese occupation — which was dismissed by the court a quo on the ground that the action of the Government had already prescribed.
The background facts as set forth in the decision appealed from which are not disputed by appellant are as follows:
It appears from the evidence submitted by the Plaintiff, both testimonial and documentary, that on various dates during the Japanese occupation in 1943 defendant Ramon M. de la Rama, brother-in-law and negotiorum gestor of his co-defendant Pedro C. Hernaez, obtained loans from the former Bank of Taiwan, Ltd., with 6% annual interest compounded quarterly and payable at its offices in Bacolod City, in the total amount of P14,786.61, Philippine Currency, as follows:
Date of Promissory
Amount
Date Due
Note
of Note


1. April 7, 1943
P271.00

2. April 28, 1943
500.00
April 28, 1944
3. May 6,1943
321.02
May 6, 1944
4. May 22, 1943
300.00

5. June 14, 1943
5,000.00
June 14, 1944
6. July 10, 1943
177.00

7. July 16, 1943
1,500.00
July 16, 1944
8. Aug. 17, 1943
6,000.00

9. Aug. 20, 1943
600.00

10. Oct. 27, 1943
117.59


As security for the payment of the loans De la Rama, also as negotiorum gestor, executed two chattel mortgages on the standing crops growing on lots 1089 and 1090 (part) of the Cadastral survey of Murcia belonging to Hernaez and described in Certificate of Title Nos. 16164 and 16165 of the Register of Deeds of Negros Occidental (Exhs. D and E). The chattel mortgages were recorded and registered on May 8, and 17, 1943, respectively, with the Office of the Register of Deeds of Negros Occidental in accordance with the Chattel Mortgage Law.
By virtue of the transfer agreement dated July 20, 1954, and June 5, 1957, between the governments of the United States of America and the Republic of the Philippines, all the assets of the Bank of Taiwan, Ltd., including the promissory notes Exhibits C, C-1 to C- 9, and the chattel mortgages on standing crops Exhibits D and E, were transferred by the United States Government, thru its Attorney General, as successor of the Philippine Alien Property Administration, to the Government of the Republic of the Philippines. These assets are now administered by the Board of Liquidators, an agency under the Office of the President of the Philippines.
Under the Ballantyne Schedule the amount of P14,786.61 was reduced to P10,652.49. The interest due thereon at the rate of 6% per annum, compounded quarterly as of December 31, 1961, amounted to P21,248.42. As of that date therefore the principal and interest totaled P31,900.91 (Exh. A-1). In spite of repeated demands the said amount remains unpaid up to the present (Exhs. B, B-1, B-2 and B-3).
xxx xxx xxx
Upon these facts, the court below dismissed the complaint filed by the Government on the ground that the action had prescribed, reasoning as follows:
The obligations under the promissory notes were due and payable one year after the execution thereof. Altho the period of maturity is not stated in all the notes, this is sufficiently shown by the nature of the standing crops — maiz, sugarcane and palay — mortgaged, which are yearly crops. The first promissory note is dated April 7, 1943, and the last, October 27, 1943; but the complaint was filed only on March 30, 1962. Even taking into consideration that "the moratorium law suspended the running of the period of prescription and the enforcement of the payment of all debts and other monetary obligations payable within the Philippines from March 10, 1945, to July 26, 1948, or a period of three years, four months and sixteen days' as repeatedly stated by the Supreme Court in so many decisions and cited in the case of Bachrach Motor Co., Inc vs. Antonio Lejano 56 O.G. 3278, still the action has already prescribed because from the last promissory note dated October 27, 1943, which became due on October 27, 1944 to March 30, 1962, the date when the complaint was filed a period of 17 years, 5 months and 3 days had elapsed, and deducting from this the period of moratorium of 3 years, 4 months and 16 years, there remains a period of 14 years and 17 days.
Wherefore, judgment is hereby rendered dismissing the complaint, without special pronouncement as to costs.
The Government's motion for the reconsideration of this decision proved unavailing; hence, this appeal from the said decision directly taken to this Court.
The sole issue presented for resolution under the lone assignment of error is whether or not the action of the Republic had really prescribed. It is the position of the Solicitor General that it has not. We agree. This Court has had occasions to turn down such plea of prescription in situations similar to the one now presented before Us, and We find the rulings laid then squarely applicable here. Thus, this Court explained in the case of Republic of the Philippines vs. Jose Grijaldo: 1
... [T]he appellant maintains that the action of the appellee had prescribed. The appellant points out that the loans became due on June 1, 1944; and when the complaint was filed on January 17, 1961 a period of more than 16 years had already elapsed — far beyond the period of ten years when an action based on a written contract should be brought to court.
This contention of the appellant has no merit. Firstly, it should be considered that the complaint in the present case was brought by the Republic of the Philippines not as a nominal party but in the exercise of its sovereign functions, to protect the interests of the State over a public property. Under paragraph 4 of Article 1108 of the Civil Code prescription, both acquisitive and extinctive, does not run against the State. This Court has held that the statute of limitations does not run against the right of action of the Government of the Philippines (Government of the Philippine Islands vs. Monte de Piedad, etc., 35 Phil. 738-751). Secondly, the running of the period of prescription of the action to collect the loan from the appellant was interrupted by the moratorium laws (Executive Order No. 25 dated November 18, 1944; Executive Order No. 32, dated March 10, 1945; and Republic Act No. 342, approved on July 26, 1948). The loan in question, as evidenced by the five promissory notes, were incurred in the year 1943, or during the period of Japanese occupation of the Philippines. This case is squarely covered by Executive Order No. 25, which became effective on November 18, 1944, providing for the suspension of payments of debts incurred after December 31, 1941. The period of prescription was, therefore, suspended beginning November 18, 1944. This Court, in the case of Rutter vs. Esteban L-3708, May 18, 1953; 93 Phil. 68), declared on May 18, 1953 that the Moratorium was R.A. No. 342 and Executive Orders Nos. 25 and 32, are unconstitutional; but in that case this Court ruled that the moratorium laws had suspended the prescriptive period until May 18, 1953. This ruling was categorically reiterated in the decision in the case of Manila Motors vs. Flores, L-9396, August 16, 1956. It follows, therefore, that the prescriptive period in the case now before Us was suspended from November 18, 1944, when Executive Order No. 25 took effect, until May 18, 1953 when R. A. 342 along with Executive Orders Nos. 25 and 32 were declared unconstitutional by this Court. Computed accordingly, the prescriptive period was suspended for 8 years and 6 months. By the appellant's own admission, the cause of action on the five promissory notes in question arose on June 1, 1944. The complaint in the present case was filed on January 17, 1961, or after a period of 16 years, 6 months and 16 days when the cause of action arose. If the prescriptive period was not interrupted by the moratorium laws, the action would have prescribed already; but, as We have stated, the prescriptive period was suspended by the moratorium laws for a period of 8 years and 6 months. If we deduct the period of suspension (8 years and 6 months) from the period that elapsed from the time the cause of action arose to the time when the complaint was filed (16 years, 6 months and 16 days) there remains a period of 8 years and 16 days. In other words, the prescriptive period ran for only 8 years and 16 days. There still remained a period of one year, 11 months and 14 days of the prescriptive period when the complaint was filed."
The above ruling was later reiterated in the case of Republic vs. Rodriguez,2 the facts of which, except that the loans there involved were contracted by therein defendant himself, are on all fours with those of the one here present. There, defendant Gregorio Rodriguez obtained loans, evidenced by two promissory notes and secured by a chattel mortgage, from the Bank of Taiwan, Ltd. in the year 1943. The loans remained unpaid until January 21, 1946, where they became vested in the United States of America thru its Alien Property Custodian, pursuant to the United States Trading with the Enemy Act, as amended, and under its Vesting Order No. P-4. Later, on July 20, 1954, said unpaid accounts together with other assets of the Bank of Taiwan were transferred, conveyed and assigned to the Government of the Philippines by virtue of the Transfer Agreement executed on that date between the United States and the Philippine governments, In June, 1960, the Republic sued on the notes; but the action was dismissed on the ground of prescription, first, by the justice of the peace of La Carlota, Negros Occidental and, later, by the Court of First Instance of Negros Occidental. On appeal to this Court, however, the order of dismissal was reversed and the record remanded for further proceedings. Speaking thru Mr. Chief Justice Bengzon, this Court ruled:
At first glance, the period of prescription has lapsed. However, the Government argues that from the period of 1943-1954, must be deducted the time when the Moratorium Law was in force, because it tolled or suspended the running of the statute of limitations. The other side replies that as the Moratorium did not bind the Republic of the Philippines or the Government of the United States, the running of the prescriptive period was never interrupted, and therefore, more than ten years having elapsed, the notes prescribed.
It will be recalled that the Moratorium Law was established by Executive Orders Nos. 25 and 32, dated November 18, 1944, and March 10, 1945, respectively. At that time, these credits belonged to the Bank of Taiwan. The Moratorium Law bound it. Therefore, as to it, the prescriptive Period was tolled. As it was only on January 21, 1946, that it lost ownership to the United States Government, more than one year must be deducted from the period from November, 1943 to July, 1954; with the result that, for purposes of prescription, less than ten years had elapsed when (in July, 1954) the Republic became the owner of the promissory notes. It must be remembered that from that time (July, 1954), the prescriptive period stopped to run against the Republic of the Philippine Islands.
Prescription does not run against the State (Art. 1108, New Civil Code).
It may be added in this connection that after Independence in July, 1946, the United States Government became a foreign country, lost its sovereignty over these Islands, and therefore, could not sue, by reason of the Moratorium Law, which lost its force only on May 18, 1953 (Rutter vs. Esteban, 93 Phil. 68).So the period between July, 1946 to May, 1953 (about 7 years) should be deducted in computing the period of prescription. ...
Applying the precedents above-quoted to the problem on hand, it is clear that the right of action of the Republic had not prescribed when it filed its complaint in this case. The first of the promissory notes here involved matured on April 7, 1944, whereupon, a right of action to enforce the obligation thereunder accrued in favor of the Bank of Taiwan. At that time, the said bank was free to sue herein appellees to recover the debt; but since it did not choose to do so, the period of prescription commenced to run against it, and seven (7) months, and eleven (11) days elapsed before the running of the statute of limitations against it was suspended on November 18,1944, when it was tolled, first, by Executive Order No. 25 which provided for the suspension of payments of debts incurred after December 31, 1941 and, later, by Executive Order No. 32, dated March 10, 1945, which suspended the enforcement of payments not only of all debts and monetary obligations incurred before December 8, 1941, but also of all debts contracted during the Japanese occupation.3 On January 21, 1946, the assets of the Bank of Taiwan in the Philippines, including the promissory notes referred, to, became vested in the Government of the United States of America by virtue of its Vesting Order No. P-4, issued under authority of its Trading with the Enemy Act. Granting, argumenti gratia herein appellees' claim that the period of prescription then commenced to run against the U.S. Government because the moratorium provided for in the executive orders above-mentioned did not bind it, still, the running of the statute of limitations was suspended for a second time on July 4, 1946, when the Philippines obtained independence and the United States became a foreign country in this jurisdiction and could not sue, by reason of the moratorium laws,4 with the resultant effect that four (4) months and thirteen (13) days of the prescriptive period again elapsed. The memorandum laws were declared unconstitutional and lost their binding effect on May 18, 1953 (Rutter vs. Esteban, supra) after which the period of prescription started to run anew against the United States Government; but on July 20, 1954, after the lapse of one (1) year, one (1) month and two (2)days, the running thereof was suspended for the third time when the obligation under consideration was transferred and assigned to the Government of the Philippines by the Attorney General of the United States by virtue of the corresponding transfer agreements entered into between the two governments pursuant to the Philippine Property Act of 1946. And there is no gainsaying that from that date (July 20, 1954), the statute of limitations ceased to run against the Republic of the Philippines since prescription does not run against the State which, in this case, seeks to enforce the said obligation in the exercise of its sovereign role.5 In fine, a total of only two (2) years and twenty-six (26) days, i.e., 7 months and 11 days during the period from April 7, 1944 to November 18, 1944, added to 4 months and 13 days during the period from January 21, 1946 to July 4, 1946, plus 1 year, 1 month and 2 days during the period from May 18, 1953 to July 20, 1954, had elapsed when the ownership of the first note fell into the hand's of the Republic of the Philippines, and as against whom no prescription had run thereafter up to the time the present case was filed on March 30, 1962. This conclusion applies with greater force in respect of the other promissory notes here involved which matured much later. Accordingly, We hold that the lower court erred in holding that the action of the Republic of the Philippines in this case had prescribed.
Appellee Pedro C. Hernaez, however, interposes his own assignment of errors in his brief, claiming that:
I. THE LOWER COURT ERRED IN DECLARING THAT THERE EXISTED A NEGOTIORUM GESTIO RELATION BETWEEN DEFENDANT PEDRO C. HERNAEZ AND DEFENDANT RAMON DE LA RAMA;
II. THE LOWER COURT LIKEWISE ERRED IN DECLARING THAT DEFENDANT PEDRO C. HERNAEZ RATIFIED THE ACTS OF MANAGEMENT OF THE GESTOR,
III. THE LOWER COURT ERRED IN NOT DECLARING THAT ON THE SUPPOSITION THAT DEFENDANT DE LA RAMA WAS THE NEGOTIORUM GESTOR OF DEFENDANT HERNAEZ, THE SUMS OF MONEY SUPPOSEDLY LOANED BY THE TAIWAN BANK, LTD., TO RAMON DE LA RAMA REPRESENTED THE MONEY PROCEEDS OF SUGAR BELONGING TO DEFENDANT HERNAEZ. (Pp. 79-80, R.A.)
Of course, it is permissible for an appellee who has not himself appealed to assign what he believes to be errors committed by the trial court in its decision, if his purpose in doing so is not to have the appealed judgment modified or reversed in any way but only to be sure that it is affirmed on other grounds, just in case it cannot be sustained on the ground upheld by the trial judge. Indeed, to that end, it is not even necessary for him to make any assignment of error, all he has to do is to point out in the discussion in his brief the errors allegedly committed by the trial court against him. (2 Moran, Comments on the Rules of Court, pp. 427-428, 1963 ed.)
We cannot, however, apply these observations to the above assignment of errors of appellee Hernaez in this case. True, said assignment is intended for no other purpose than to sustain the judgment of dismissal of the court a quo in his favor, but it will be noted that said assignment raises issues of fact which require a review of the evidence, and as plaintiff-appellee has appealed directly to this Court on a question of law, namely, whether or not the trial court erred in dismissing its complaint on the ground of prescription, upon the factual premises found by His Honor from the evidence submitted by the Parties after due trial, the record on appeal here does not incorporate such evidence, hence the same cannot reviewed. Upon the other hand, even if appellee Hernaez had himself perfected his own appeal, which understandably he could not have done since the judgment of the trial court was in his favor, this Court would still be unable to pass on issues of fact he raised, for they properly belong to the jurisdiction of the Court of Appeals, even under the former law in force at the time the present case was appealed. Under these circumstances, We hold that the appropriate procedure is for appellee to take up the above assignment of errors in the appeal he may make, if necessary from the judgment that the court a quo will render after this case is remanded to it.
IN VIEW OF ALL THE FOREGOING, the judgment of dismissal rendered By the trial court is hereby reversed, the motion of appellee for the dismissal of the complaint on the ground of prescription is denied, and this case is ordered remanded to the trial court in order that judgment on the merits and pass on all issues between the parties other than that of prescription resolved herein, with costs against appellees.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Fernando and Teehankee, JJ., concur.
Makalintal and Castro, JJ., concur in the result.

Footnotes
1 L-20240, December 31, 1965.
2 L-18967, January 31, 1966, 16 SCRA 53, 55-56.
3 See Nielson & Co., Inc. vs. Lepanto Consolidated Mining Company, L-21601 (Resolution of Motion for Reconsideration of the decision of this Court in that case on December 17, 1966, 18 SCRA 1040), December 28, 1968, 26 SCRA 540, 561.
4 Republic vs. Rodriguez, supra.
5 Republic of the Philippines vs. Grijaldo, supra.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 71479 October 18, 1990
MELLON BANK, N.A., petitioner,
vs.
HON. CELSO L. MAGSINO, in his capacity as Presiding Judge of Branch CLIX of the Regional Trial Court at Pasig; MELCHOR JAVIER, JR., VICTORIA JAVIER; HEIRS OF HONORIO POBLADOR, JR., namely: Elsa Alunan Poblador, Honorio Poblador III, Rafael Poblador, Manuel Poblador, Ma. Regina Poblador, Ma. Concepcion Poblador & Ma. Dolores Poblador; F.C. HAGEDORN & CO., INC.; DOMINGO JHOCSON, JR.; JOSE MARQUEZ; ROBERTO GARINO; ELNOR INVESTMENT CO., INC.; PARAMOUNT FINANCE CORPORATION; RAFAEL CABALLERO; and TRI-ARC INVESTMENT and MANAGEMENT CO., INC. respondents.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for petitioner.
Jose Buendia for respondent Jose Marquez.
Raul L. Cornea & Associates for Jhocson and Garino.
Jesus L. Santos and Conrado Valera for Tri-Arc Investment, etc.
Bernardo D. Calderon for respondent ELNOR and Rafael Caballero.
Nazareno, Azada, Sabado & Dizon for Movants.
Balgos & Perez for Paramount Finance Corporation.
Meer, Meer & Meer for Hagedorn.
Alberto Villareza for F.C. Hagedorn & Co.

FERNAN, C.J.:
The issue in the instant special civil action of certiorari is whether or not, by virtue of the principle of election of remedies, an action filed in California, U.S.A., to recover real property located therein and to constitute a constructive trust on said property precludes the filing in our jurisdiction of an action to recover the purchase price of said real property.
On May 27, 1977, Dolores Ventosa requested the transfer of $1,000 from the First National Bank of Moundsville, West Virginia, U.S.A. to Victoria Javier in Manila through the Prudential Bank. Accordingly, the First National Bank requested the petitioner, Mellon Bank, to effect the transfer. Unfortunately the wire sent by Mellon Bank to Manufacturers Hanover Bank, a correspondent of Prudential Bank, indicated the amount transferred as "US$1,000,000.00" instead of US$1,000.00. Hence Manufacturers Hanover Bank transferred one million dollars less bank charges of $6.30 to the Prudential Bank for the account of Victoria Javier.
On June 3, 1977, Javier opened a new dollar account (No. 343) in the Prudential Bank and deposited $999,943.70. Immediately their, Victoria Javier and her husband, Melchor Javier, Jr., made withdrawals from the account, deposited them in several banks only to withdraw them later in an apparent plan to conceal, "launder" and dissipate the erroneously sent amount.
On June 14, 1977, Javier withdrew $475,000 from account No. 343 and converted it into eight cashier's checks made out to the following: (a) F.C. Hagedorn & Co., Inc., two cheeks for the total amount of P1,000,000; (b) Elnor Investment Co., Inc., two checks for P1,000,000; (c) Paramount Finance Corporation, two checks for P1,000,000; and (d) M. Javier, Jr., two checks for P496,000. The first six checks were delivered to Jose Marquez and Honorio Poblador, Jr.
It appears that Melchor Javier, Jr. had requested Jose Marquez, a realtor, to look for properties for sale in the United States. Marquez offered a 160-acre lot in the Mojave desert in California City which was owned by Honorio Poblador, Jr. Javier, without having seen the property, agreed to buy it for P3,236,800 (US$437,405) although it was actually appraised at around $38,500. Consequently, as Poblador's agent, Marquez executed in Makati a deed of absolute sale in favor of the Javiers and had the document notarized in Manila before an associate of Poblador. Marquez executed another deed of sale indicating receipt of the purchase price and sent the deed to the Kern County Registrar in California for registration.
Inasmuch as Poblador had requested that the purchase price should not be paid directly to him, the payment of P3,000,000 was coursed through Elnor Investment Co., Inc., allegedly Poblador's personal holding company; Paramount Finance, allegedly headed by Poblador's brother, and F.C. Hagedorn, allegedly a stock brokerage with extensive dealings with Poblador. The payment was made through the aforementioned six cashier's checks while the balance of P236,000 was paid in cash by Javier who did not even ask for a receipt.
The two checks totalling P1,000,000 was delivered by Poblador to F.C. Hagedorn with specific instructions to purchase Atlas, SMC and Philex shares. The four checks for P2,000,000 with Elnor Investment and Paramount Finance as payees were delivered to the latter to purchase "bearer" notes.
Meanwhile, in July, 1977, Mellon Bank filed a complaint docketed as No. 148056 in the Superior Court of California, County of Kern, against Melchor Javier, Jane Doe Javier, Honorio Poblador, Jrn, and Does I through V. In its first amended complaint to impose constructive trust dated July 14, 1977, 1 Mellon Bank alleged that it had mistakenly and inadvertently cause the transfer of the sum of $999,000.00 to Jane Doe Javier; that it believes that the defendants had withdrawn said funds; that "the defendants and each of them have used a portion of said funds to purchase real property located in Kern County, California"; and that because of defendants' knowledge of Mellon Bank's mistake and inadvertence and their use of the funds to purchase the property, they and "each of them are involuntary or constructive trustees of the real property and of any profits therefrom, with a duty to convey the same to plaintiff forthwith." It prayed that the defendants and each of them be declared as holders of the property in trust for the plaintiff; that defendants be compelled to transfer legal title and possession of the property to the plaintiff; that defendants be made to pay the costs of the suit, and that other reliefs be granted them.
On July 29, 1977, Mellon Bank also filed in the Court of First Instance of Rizal, Branch X, a complaint against the Javier spouses, Honorio Poblador, Jr., Domingo L. Jhocson, Jr., Jose Marquez, Roberto Gariño, Elnor Investment Co., Inc., F.C. Hagedorn & Co., Inc. and Paramount Finance Corporation. After its amendment, Rafael Caballero and Tri-Arc Investment & Management Company, Inc. were also named defendants. 2
The amended and supplemental complaint alleged the facts set forth above and added that Roberto Gariño, chief accountant of Prudential Bank, and who was the reference of Mrs. Ventosa's dollar remittances to Victoria Javier, immediately informed the Javiers of the receipt of US$1,000,000.00; that knowing the financial circumstances of Mrs. Ventosa and the fact that a mistake had been committed, the Javiers, with undue haste, took unlawful advantage of the mistake, withdrew the whole amount and transferred the same to a "343 dollar account"; that, aided and abetted by Poblador and Domingo L. Jhocson, the Javiers "compounded and completed the conversion" of the funds by withdrawing from the account dollars or pesos equivalent to US $975,000; that by force of law, the Javiers had been constituted trustees of an implied trust for the benefit of Mellon Bank with a clear duty to return to said bank the moneys mistakenly paid to them; that, upon request of Mellon Bank and Manufacturers Hanover Bank, Prudential Bank informed the Javiers of the erroneous transmittal of one million dollars first orally and later by letter-demand; that conferences between the representatives of the Javiers, led by Jhocson and Poblador, in the latter's capacity as legal and financial counsel, and representatives of Mellon Bank, proved futile as the Javiers claimed that most of the moneys had been irretrievably spent; that the Javiers could only return the amount if the Mellon Bank should agree to make an absolute quitclaim and waiver of future rights against them, and that in a scheme to conceal and dissipate the funds, through the active participation of Jose Marquez, the Javiers bought the California property of Poblador.
It further alleged that trust fund moneys totalling P3,000,000.00 were made payable to Hagedorn Paramount and Elnor; that Hagedorn on instructions of Poblador, purchased shares of stock at a stock exchange for P1,000,000.00 but later, it hastily sold said shares at a loss of approximately P150,000.00 to the prejudice of the plaintiff; that proceeds of the sale were deposited by Hagedorn in the name of Poblador and/or the law office of Poblador, Nazareno, Azada, Tomacruz and Paredes; that dividends declared on the shares were delivered by Hagedorn to Caballero after the complaint had been filed and thereafter, Caballero deposited the dividends in his personal account; that after receiving the P1,000,000.00 trust money, Paramount issued promissory notes upon maturity of which Paramount released the amount to unknown persons; that Elnor also invested P1,000,000.00 in Paramount for which the latter also issued promissory notes; that after the filing of the complaint, counsel for plaintiff requested Paramount not to release the amount after maturity; that in evident bad faith, Elnor transferred the non-negotiable Paramount promissory notes to Tri-Arc. that when the notes matured, Paramount delivered the proceeds of P1,000,000.00 to Tri-Arc; that Poblador knew or should have known that the attorney's fees he received from the Javiers came from the trust funds; and that despite formal demands even after the filing of the complaint, the defendants refused to return the trust funds which they continued concealing and dissipating.
It prayed that: (a) the Javiers, Poblador, Elnor, Jhocson and Gariño be ordered to account for and pay jointly and severally unto the plaintiff US$999,000.00 plus increments, additions, fruits and interests earned by the funds from receipt thereof until fully paid; (b) the other defendants be ordered to account for and pay unto the plaintiff jointly and severally with the Javiers to the extent of the amounts which each of them may have received directly or indirectly from the US$999,000.00 plus increments, additions, fruits and interests; (c) Marquez be held jointly and severally liable with Poblador for the amount received by the latter for the sale of the 160-acre lot in California City; and (d) defendants be likewise held liable jointly and severally for attomey's fees and litigation expenses plus exemplary damages.
In due course, the defendants filed their answers and hearing of the case ensued. In his testimony, Jose Marquez stated that Prudential Bank and Trust Company checks Nos. 2530 and 2531 in the respective amounts of P100,000 and P900,000 payable to F. C. Hagedorn were delivered to him by Melchor Javier, Jr. as partial consideration for the sale of Poblador's property in California. After receiving the checks, Hagedorn purchased shares of Atlas Mining, Philex, Marcopper and San Miguel Corporation for Account No. 3000, which, according to Fred Hagedorn belonged to the law office of Poblador. 3
F.C. Hagedorn & Co., Inc. then sold the shares for P874,490.75 as evidenced by HSBC check No. 339736 for P400,000 and HSBC check No. 339737 for P474,490.75 payable to "cash". Mellon Bank traced these checks to Account 2825-1 of the Philippine Veterans Bank in the name of Cipriano Azada, Poblador's law partner and counsel to the Javiers. 4
An employee of the Philippine Veterans Bank thereafter introduced the specimen signature cards for Account No. 2825-1 thereby confirming Azada's ownership of the account. Defendants objected to this testimony on the grounds of Azada's absence, the confidentiality of the bank account, and the best evidence rule. The court overruled the objection. Another employee of the Philippine Veterans Bank then presented the ledger card for Account No. 2825-1, a check deposit slip and a daily report of returned items. The defendants objected but they were again overruled by the court.
Mellon Bank then subpoenaed Erlinda Baylosis of the Philippine Veterans Bank to show that Azada deposited HSBC checks No. 339736 and 339737 amounting to P874,490.75 in his personal current account with said bank. It also subpoenaed Pilologo Red, Jr. of Hongkong & Shanghai Banking Corporation to prove that said amount was returned by Azada to Hagedorn.
The testimonies of these witnesses were objected to by the defense on the grounds of res inter alios acta, immateriality, irrelevancy and confidentiality. To resolve the matter, the court ordered the parties to submit memoranda. The defendants' objections were also discussed at the hearing on July 13, 1982. For the first time, Poblador's counsel raised the matter of "election of remedies." 5
At the July 20, 1982 hearing, the lower court, then presided by Judge Eficio Acosta, conditionally allowed the testimonies of Baylosis and Red. Baylosis afffirmed that Azada deposited checks Nos. 339736 and 339737 in the total amount of P874,490.75 in his personal account with the Philippine Veterans Bank but almost simultaneously, Azada issued his PVB check for the same amount in favor of Hagedorn Consequently, Azada's check initially bounced. For his part, Red testified that Azada's check for P874,490.75 was received by the Hongkong & Shanghai Banking Corporation and credited to the account of Hagedorn .
The defendants then moved to strike off the testimonies of Baylosis and Red from the record. Defendant Paramount Finance Corporation, which is not a party to the California case, thereafter filed its memorandum raising the matter of "election of remedies". It averred that inasmuch as the Mellon Bank had filed in California an action to impose constructive trust on the California property and to recover the same, Mellon Bank can no longer try to regain the purchase price of the same property through Civil Case No. 26899. The other defendants adopted Paramount's stand.
After Mellon Bank filed its reply to the memorandum of Paramount, on September 10, 1982, Judge Acosta issued a resolution ordering that the testimonies of Baylosis and Red and the documents they testified on, which were conditionally allowed, be stricken from the records. 6 Judge Acosta explained:
After a judicious evaluation of the arguments of the parties the Court is of the view that in cases where money held in trust was diverted by the trustee, under the "rule of trust pursuit" the beneficiary "may elect whether to accept the trust estate in its new form or hold the trustee responsible for it in its original condition" (Lathrop vs. Hampton, 31 Cal. 17; Zodos vs. Marefalos 48 Idaho 291; Bahle vs. Hasselbrach 64 NW Eq. 334, 51 Sections 508-76 Am Jur. 2d p. 475), and that "an election to pursue one remedy waives and bars pursuit of any inconsistent remedy"(76 Am Jur. 2d S253). The instant complaint among others is for the recovery of the purchase price of the Kern property as held in trust for the plaintiff while in the California case the plaintiff maintains that the Kern property is held in trust for the plaintiff, which positions are inconsistent with each other. Neither can the plaintiff now abandon his complaint for the recovery of the Kern property and pursue his complaint for the recovery of the purchase price of said property for "if he has first sought to follow the res, the plaintiff cannot thereafter hold the trustee personally responsible" and "when once there has been an election to do one of two things, you cannot retract it and do the other thing. The election once made is finally made." (Fowler vs. Bowvery Savings Bank 113 N.Y. 450, 21 N.E. 172, 4 LRA 145, 10 Am. S.R. 479. 2 Silv. 280, 23, Abb. N. Cos. 133065 C. J. p. 980 Note 32).
The fact that the California case has been stayed pending determination of the instant case only means that should this case be dismissed, the California case can proceed to its final determination.
Furthermore, when the plaintiff filed the California case for the transfer of legal title and possession of the Kern property to the plaintiff it in effect ratified the transaction for "by taking the proceeds or product of a wrongful transfer of trust property or funds, the beneficiary ratifies the transaction" (Board of Commissioner vs. Strawn [CA6 Ohio] 157 F. 49, 76 Am Jur. 2d Section 253). Consequently the purchase price of the California property received by defendant Poblador from Javier is no longer the proper subject matter of litigation and the movement and disposition of the purchase price is therefore within the scope of the absolutely confidential nature of bank deposits as provided by Sec. 2, R.A. 1405 as amended by PD No. 1792.
Mellon Bank moved for reconsideration, alleging that said order prevented the presentation of evidence on the purchase price of the California property; that the California case cannot be considered a waiver of the pursuit of the purchase price as even if said case was filed fifteen days prior to the filing of the original complaint in this case, except for the Javiers, no other defendants raised in their answers the affirmative defense of the filing of the California case; that after the amendment of the complaint, none of the defendants raised the matter of "election of remedies" in their answers; that realizing this procedural error, Paramount sought the amendment of its answer to reflect the "defence" of "election of remedies"; that, disregarding its previous orders allowing evidence and testimonies on Account No. 2825-1, the court made a turnabout and ruled that the testimonies on said account were irrelevant and confidential under Republic Act No. 1405; that Philippine law and jurisprudence does not require the election of remedies for they favor availment of all remedies; that even United States jurisprudence frowns upon election of remedies if it will lead to an inequitable result; that, as held by this Court in Radiowealth vs. Javier, 7 there can be no binding election of remedies before the decision on the merits is had; that until Mellon Bank gets full recovery of the trust moneys, any contention of election of remedy is premature, and that, the purchase price being the subject of litigation, inquiring into its movement, including its deposit in banks, is allowed under Republic Act No. 1405.
Defendants filed their respective comments and oppositions to the motion for reconsideration. In its reply, the Mellon Bank presented proof to the effect that in the California case, defendants filed motions to stake out the cross-complaint of Mellon Bank, for summary judgment and to stay or dismiss the action on the ground of inconvenient forum but the first two motions and the motion to dismiss were denied "without prejudice to renew upon determination of the Philippine action." The motion to stay proceedings was "granted until determination of the Philippine action." 8
On October 28, 1983, the lower court, through Judge Acosta, denied the motion for reconsideration and ordered the continuation of the hearing (Rollo, p. 182). The plaintiff filed a motion for the reconsideration of both the September 10, 1982 and October 28, 1983 orders. After the parties had filed comments, opposition and reply, the court, through Judge Celso L. Magsino, denied Mellon Bank's second motion for reconsideration on the ground that it was "prescribed by the 1983 Interim Rules of Court" in an order dated July 9, 1985. 9
The court ruled that the determination of the relevancy of the testimonies of Baylosis and Red was "premised directly and principally" on whether or not Mellon Bank could still recover the purchase price of the California property notwithstanding the filing of the case in California to recover title and possession of the said property. After quoting the resolution of September 10, 1982, the Court ruled that it was a "final order or a definitive judgment with respect to the claim of plaintiff for the recovery" of the purchase price of the California property. It stated:
The adjudication in the Order of September 10, 1982 and the Order of October 28, 1983, which has the effect of declaring that plaintiff has no cause of action against the defendants for the recovery of the proceeds of the sale of Kern property in the amount of Three Million Three Hundred Fifty Thousand Pesos (P3,500,000.00 [sic]) for having filed a complaint for the recovery of the Kern property in the Superior Court of California, County of Kern is a final and definitive disposition of the claim of the plaintiff to recover in the instant action the proceeds of sale of said property against the defendants. The issue of "election of remedy" by the plaintiff was lengthily and thoroughly discussed and argued by the parties before the rendition of the resolution of September 10, 1982, and in the motion for reconsideration and oppositions thereto before its resolution in the Order of October 28, 1983. Such issue is a substantive one as it refers to the existence of plaintiffs cause of action to recover the proceeds of the sale of the Kern property in this action, and that issue was presented to the Court as if a motion to dismiss or a preliminary hearing of an affirmative defense on the ground that plaintiff has no cause of action, and was resolved against plaintiff in the Order of September 10, 1982, after a full hearing of all the parties. Said Order of September 10, 1982 has the effect of putting an end to the controversy between the parties as to the right of plaintiff to claim or recover the proceeds of the sale of the Kern property from the defendants. It is therefore an adjudication upon the merits. 10
Hence, Mellon Bank filed the instant petition for certiorari claiming that the resolution of September 10, 1982 and the orders of October 28, 1983 and July 9, 1985 are void for being unlawful and oppressive exercises of legal authority, subversive of the fair administration of justice, and in excess of jurisdiction. The petition is founded on its allegations that: (a) the resolution of September 10, 1982 is interlocutory as it does not dispose of Civil Case No. 26899 completely: (b) the evidence stricken from the records is relevant on the basis of the allegations of the amended and supplemental complaint, and (c) the doctrine of election of remedies, which has long been declared obsolete in the United States, is not applicable in this case.
With the exception of the Javiers, all the respondents filed their respective comments on the petition. Having failed to file said comment, the Javiers' counsel of record, Azada, Tomacruz & Cacanindin, 11 was required to show cause why disciplinary action should not be taken against it. And, having also failed to show cause, it was fined P300.
In his motion for reconsideration of the resolution imposing said fine, Cipriano Azada alleged that in Civil Case No. 26899, the Javiers were indeed represented by the law firm of Poblador, Azada, Tomacruz & Cacanindin but he was never the lawyer of the Javiers' in his personal capacity; that after the death of Honorio Poblador, Jr., he had withdrawn from the partnership; that he is the counsel of the Administratrix of the Estate of Honorio Poblador, Jr. for which he had filed a comment, and that should the Court still require him to file comment for the Javiers despite the lack of client-lawyer relationship, he would adopt the comment he had filed for the said Administratrix. 12
In its effort to locate the Javiers so that their side could be heard, we required the petitioner to furnish us with the Javiers' address as well as the name and address of their counsel. 13 In compliance therewith, counsel for petitioner manifested that the Javiers had two known addresses in San Juan, Metro Manila and in Sampaloc, Manila; that since their conviction in Crim. Case No. CCC-VII 2369-P.C. of the Pasig Regional Trial Court, the Javiers had gone into hiding and warrants for their arrest still remain unserved; 14 that the Javiers' counsel of record in Civil Case No. 26899 is Atty. Cipriano Azada; that the same counsel appeared for the Javiers in Criminal Case No. 39851 of the Pasig Regional Trial Court which is a tax evasion case filed by the Republic of the Philippines, and that during the hearings of the civil and tax evasion cases against the Javiers, Atty. Cipriano Azada, Jr. represented them. 15
Inasmuch as copies of the resolution requiring comment on the petition and the petition itself addressed to Melchor Javier were returned with the notations "moved" and "deceased", the Court required that said copies be sent to Mrs. Javier herself and that petitioner should inform the Court of the veracity of Javier's death. 16 A copy of the resolution addressed to Mrs. Javier was returned also with the notation "deceased." 17
Counsel for petitioner accordingly informed the Court that he learned that the Javiers had fled the country and that he had no way of verifying whether Melchor Javier had indeed died. 18
In view of these circumstances, the Javiers' comment on the petition shall be dispensed with as the Court deems the pleadings filed by the parties sufficient bases for resolving this case. The Javiers shall be served copies of this decision in accordance with Section 6, Rule 13 of the Rules of Court by delivering said copies to the clerk of court of the lower court, with proof of failure of both personal service and service by mail.
We hold that the lower court gravely abused its discretion in ruling that the resolution of September 10, 1982 is a "final and definitive disposition" of petitioner's claim for the purchase price of the Kern property. The resolution is interlocutory and means no more than what it states in its dispositive portion-the testimonies of Baylosis and Red and the documents they testified on, should be stricken from the record.
That the resolution discusses the common-law principle of election of remedies, a subject matter which shall be dealt with later, is beside the point. It is interlocutory because the issue resolved therein is merely the admissibility of the plaintiff's evidence. 19 As such, it does not dispose of the case completely but leaves something more to be done upon its merits. 20 There are things left undone in Civil Case No. 26899 after the issuance of the September 10, 1982 resolution not only because of its explicit dispositive portion but also due to the fact that even until now, the case is still pending and being heard. 21
Furthermore, the lower court's holding in its July 9, 1985 order that petitioner's second motion for reconsideration is proscribed by the 1983 Interim Rules of Court which disallows such motion on a final order or judgment, should be rectified. As explained above, the resolution of September 10, 1982 is not a final one. It also contains conclusions on procedural matters which, if left unchecked, would prejudice petitioner's substantive rights.
In effect, therefore, the July 9, 1985 order is a shortcut disposition of Civil Case No. 26899 in total disregard of petitioner's right to a thorough ventilation of its claims. By putting a premium on procedural technicalities over the resolution of the merits of the case, the lower court rode roughshod over the basic judicial tenet that litigations should, as much as possible, be decided on their merits and not on technicalities. 22 The trial court's patent grave abuse of discretion therefore forces us to exercise supervisory authority to correct its errors notwithstanding the fact that ordinarily, this Court would not entertain a petition for certiorari questioning the legality and validity of an interlocutory order. 23
Respondents' principal objection to the testimonies of Baylosis and Red is their alleged irrelevance to the issues raised in Civil Case No. 26899. The fallacy of this objection comes to fore upon a scrutiny of the complaint. Petitioner's theory therein is that after the Javiers had maliciously appropriated unto themselves $999,000, the other private respondents conspired and participated in the concealment and dissipation of said amount. The testimonies of Baylosis and Red are therefore needed to establish the scheme to hide the erroneously sent amount.
Private respondents' protestations that to allow the questioned testimonies to remain on record would be in violation of the provisions of Republic Act No. 1405 on the secrecy of bank deposits, is unfounded. Section 2 of said law allows the disclosure of bank deposits in cases where the money deposited is the subject matter of the litigation. 24 Inasmuch as Civil Case No. 26899 is aimed at recovering the amount converted by the Javiers for their own benefit, necessarily, an inquiry into the whereabouts of the illegally acquired amount extends to whatever is concealed by being held or recorded in the name of persons other than the one responsible for the illegal acquisition. 25
We view respondents' reliance on the procedural principle of election of remedies as part of their ploy to terminate Civil Case No. 26899 prematurely. With the exception of the Javiers, respondents failed to raise it as a defense in their answers and therefore, by virtue of Section 2, Rule 9 of the Rules of Court, such defense is deemed waived. 26 Notwithstanding its lengthy and thorough discussion during the hearing and in pleadings subsequent to the answers, the issue of election of remedies has not, contrary to the lower court's assertion, been elevated to a "substantive one." Having been waived as a defense, it cannot be treated as if it has been raised in a motion to dismiss based on the nonexistence of a cause of action.
Moreover, granting that the defense was properly raised, it is inapplicable in this case. In its broad sense, election of remedies refers to the choice by a party to an action of one of two or more coexisting remedial rights, where several such rights arise out of the same facts, but the term has been generally limited to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily repugnant to, or a repudiation of, the other. In its technical and more restricted sense, election of remedies is the adoption of one of two or more coexisting remedies, with the effect of precluding a resort to the others. 27
As a technical rule of procedure, the purpose of the doctrine of election of remedies is not to prevent recourse to any remedy, but to prevent double redress for a single wrong. 28 It is regarded as an application of the law of estoppel, upon the theory that a party cannot, in the assertion of his right occupy inconsistent positions which form the basis of his respective remedies. However, when a certain state of facts under the law entitles a party to alternative remedies, both founded upon the Identical state of facts, these remedies are not considered inconsistent remedies. In such case, the invocation of one remedy is not an election which will bar the other, unless the suit upon the remedy first invoked shall reach the stage of final adjudication or unless by the invocation of the remedy first sought to be enforced, the plaintiff shall have gained an advantage thereby or caused detriment or change of situation to the other. 29 It must be pointed out that ordinarily, election of remedies is not made until the judicial proceedings has gone to judgment on the merits. 30
Consonant with these rulings, this Court, through Justice J.B.L. Reyes, opined that while some American authorities hold that the mere initiation of proceedings constitutes a binding choice of remedies that precludes pursuit of alternative courses, the better rule is that no binding election occurs before a decision on the merits is had or a detriment to the other party supervenes. 31 This is because the principle of election of remedies is discordant with the modern procedural concepts embodied in the Code of Civil Procedure which Permits a party to seek inconsistent remedies in his claim for relief without being required to elect between them at the pleading stage of the litigation. 32
It should be noted that the remedies pursued in the California case and in Civil Case No. 26899 are not exactly repugnant or inconsistent with each other. If ever, they are merely alternative in view of the inclusion of parties in the latter case who are not named defendants in the former. The causes of action, although they all stem from the erroneous transmittal of dollars, are distinct as shown by the complaints lengthily set out above. The bar of an election of remedies does not apply to the assertion of distinct causes of action against different persons arising out of independent transactions. 33
As correctly pointed out by the petitioner, the doctrine of election of remedies is not favored in the United States for being harsh. 34 Its application with regard to two cases filed in two different jurisdictions is also circumscribed by jurisprudence on abatement of suits. Thus, in Brooks Erection Co. v. William R. Montgomery & Associates, Inc., 35 it is held:
The pendency of an action in the courts of one state or country is not a bar to the institution of another action between the same parties and for the same cause of action in a court of another state or country, nor is it the duty of the court in which the latter action is brought to stay the same pending a determination of the earlier action, even though the court in which the earlier action is brought has jurisdiction sufficient to dispose of the entire controversy. Nevertheless, sometimes stated as a matter of comity not of right, it is usual for the court in which the later action is brought to stay proceedings under such circumstances until the earlier action is determined.
However, in view of the fact that the California court wherein the case for recovery of the Kern property was first filed against the Javiers had stayed proceedings therein until after the termination of Civil Case No. 26899, the court below can do no less than expedite the disposition of said case.
We cannot dispose of this case without condemning in the strongest terms possible the acts of chicanery so apparent from the records. The respective liabilities of the respondents are still being determined by the court below. We must warn, however, against the use of technicalities and obstructive tactics to delay a just settlement of this case. The taking advantage of the petitioner's mistake to gain sudden and undeserved wealth is marked by circumstances so brazen and shocking that any further delay will reflect poorly on the kind of justice our courts dispense. The possible involvement of lawyers in this sorry scheme stamps a black mark on the legal profession. The Integrated Bar of the Philippines (IBP) must be made aware of the ostensible participation, if not instigation, in the spiriting away of the missing funds. The IBP must take the proper action at the appropriate time against all lawyers involved in any misdeeds arising from this case.
WHEREFORE, the resolution of September 10, 1982 and the orders of October 28, 1982 and July 9, 1985 are hereby annulled. The lower court is ordered to proceed with dispatch in the disposition of Civil case No. 26899, considering that thirteen (13) years have gone by since the original erroneous remittance.
Service of this decision on the Javier spouses shall be in accordance with Section 6, Rule 13 of the Rules of Court. A copy of this decision shall be served on the Integrated Bar of the Philippines.
The decision is immediately executory. Costs against private respondents.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes,JJ., concur.

Footnotes
1 Rollo, p. 101.
2 Civil Case No. 26899.
3 Rollo, p. 73.
4 Rollo, pp. 73-74.
5 Rollo, p. 28.
6 Rollo, pp. 118-119.
7 SCRA 804.
8 Rollo, p. 167.
9 Rollo, p. 251.
10 See Licup vs. Manila Railroad Co., 2 SCRA 267, 271. Emphasis supplied.
11 Rollo, p. 17.
12 Rollo, p. 459.
13 Rollo, p. 467.
14 See: People vs. Court of Appeals, No. 51635, December 14, 1982, 119 SCRA 162.
15 Rollo, p. 483.
16 Rollo, p. 601.
17 Rollo, p. 615.
18 Rollo, p. 607.
19 Lamagan vs. De la Cruz, L-27950, July 29, 1971, 40 SCRA 101, 106-107.
FIRST DIVISION
G.R. No. L-51635 December l4, 1982
PEOPLE OF THE PHILIPPINES, Petitioners, vs. COURT OF APPEALS, HON. RAMON G. GAVIOLA, JR., HON. BUENAVENTURA S. DE LA FUENTE, HON. EDGARDO L. PARAS, MELCHOR J. JAVIER and VICTORIA L. JAVIER, Respondents.
Solicitor General for petitioner.chanrobles virtual law library
Alejandro de Santos for respondent Javier.
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TEEHANKEE, Acting C.J.: chanrobles virtual law library
The Court hereby sets aside the challenged resolutions of respondent Court of Appeals - the first dated September 18, 1979 which granted private respondents-accused's motion that the trial court's challenged order denying their demurrer to evidence be considered a "judgment of conviction" against them and that their petition for certiorari against said order of denial be considered as an "appeal" from such "judgment" and declared that it would decide the "appeal" on the merits "as soon as the respective briefs and/or memorandum of the parties are in" and gave the "appellants" (respondents-accused) twenty days from the time the basic record and transcripts were submitted within which to submit their "memorandum in lieu of appellants' brief" and the appellee (the petitioner People who was merely a respondent therein) a period of twenty days from receipt of "appellants' brief" within which to file their "appellee's brief;" and the second, dated October 8, 1979 which declared the case submitted for decision without the briefs or memoranda having been filed, which respondent court has stated in its comment was a "manifestly erroneous" resolution inadvertently issued by the division clerk of court upon his own responsibility.chanroblesvirtuallawlibrary chanrobles virtual law library
Respondents-accused upon the denial by the trial court of their demurrer to evidence and prayer for dismissal of the criminal case against them (arising from their conversion to their own use and benefit of an erroneous bank remittance to them of U.S. $1,000,000.00 instead of U.S. $1,000.00) had filed in respondent court their special civil action of certiorari 1 praying for the annulment of said interlocutory order, on the claim that their liability was civil rather than criminal. When they moved that they waived the right to present evidence in the trial court and that the trial court's challenged order be considered a "judgment of conviction" and that their action be considered as an appeal from the said judgment," it was an admission of the futility of their action which could not prosper since the trial court obviously committed no grave abuse of discretion in denying their demurrer to evidence. All that was before respondent appellate court were the trial court's interlocutory orders denying dismissal of the criminal case since it "believe(d) that the prosecution has established a prima facie case" and setting the continuation of the trial on September 22, 1978 for reception of evidence on behalf of respondents-accused.chanroblesvirtuallawlibrary chanrobles virtual law library
All that respondent court could accordingly do in view of respondents-accused's motion was to dismiss the petition and remand the case to the trial court for the rendition of its final judgment determining the imposable penalty in the exercise of its original and exclusive jurisdiction over the criminal case. Respondent court being exclusively a court of appellate jurisdiction could not preempt or arrogate unto itself the trial court's original and exclusive jurisdiction, much less convert the accused's petition of certiorari before it (questioning interlocutory orders of the trial court) into an appeal over a criminal case wherein the trial court had not yet rendered judgment nor imposed any penalty on the accused. In short, there was no judgment of the trial court over which it could exercise its only jurisdiction - the appellate jurisdiction of review on appeal.chanroblesvirtuallawlibrary chanrobles virtual law library
Assuming arguendo that respondent court could validly entertain respondents-accused's motion to consider themselves convicted solely on the prosecution's evidence since they were, no longer presenting any evidence on their behalf and to rule upon their "conviction" by way of an appeal, the most that respondent court could do - since only a pure question of law is involved, to wit, whether their admitted acts as shown by the evidence of the prosecution constitute the crime of estafa or merely give rise to a civil liability which they admit - was to elevate the case to this Court under its exclusive jurisdiction to review and determine all such cases involving only errors or questions of law.chanroblesvirtuallawlibrary chanrobles virtual law library
The undisputed pertinent background facts of the case are as follows: On November 8, 1977, respondents-accused Melchor J. Javier and Victoria L. Javier were charged with estafa before the Circuit Criminal Court of the Seventh Judicial District presided over by then Judge, now Court of Appeals Associate Justice, Onofre Villaluz, in an information reading as follows: chanrobles virtual law library
That on or about June 3, 1977, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, Melchor J. Javier, Jr. and Victoria L. Javier, received from Prudential Bank & Trust Company, Pasay City Branch, the amount of US$ 999,993.70, United States Currency, by virtue of a Telex from Manufacturers Hanover Bank, which latter bank acted pursuant to a request of the First National Bank of Moundsville Moundsville West Virginia, U.S.A., to effect a transfer of US$ 1,000.00 to the Prudential Bank & Trust Company for the account of the accused Victoria L. Javier but a Mellon Bank, N.A. employee sent by mistake a wire to Manufacturers Hanover Bank, New York. U.S.A.. to effect the transfer of US$ 1,000,000.00 instead of only US$ 1,000.00; that once in possession of the aforesaid amount of US$ 999,9993.70, said accused Melchor J. Javier, Jr. and Victoria L. Javier, conspiring and confederation with each other, and fraudulently taking advantage of said take of' Which they were fully aware, with grave abuse of confidence and/or unfaithfulness, in serious breach of their legal obligation to return the excess amount unduly sent and received by them did then and there wilfully unlawfully, feloniously and fraudulently misappropriate, misapply and convert the amount of US$ 999,000.00. for their own use and benefit and despite repeated demands by the complainant, the accused refused and failed to return the same, to the damage and prejudice of Mellon Bank, N.A. in the aforesaid amount of US$999,000.00.chanroblesvirtuallawlibrary chanrobles virtual law library
CONTRARY TO LAW.
A plea of not guilty, having been interposed by the accused, the trial preceeded, and after the People had rested its case, the accused, on June 30, 1978, filed a demurrer to evidence and prayed for the dismissal of the criminal charge against them. Upon opposition by the People, the trial court on July 27, 1978 denied the demurrer to evidence or motion to dismiss, ruling that "the prosecution has established a prima facie case" and that "demurrer to evidence, under Rule 35, is not applicable to criminal cases." Reconsideration, which was duly opposed by the People, was denied per the trial court's Order of August 18, 1978, which set the continuation of the trial for reception of the accused's evidence on September 22, 1978.chanroblesvirtuallawlibrary chanrobles virtual law library
On September 8, 1978, the accused filed with respondent Court of Appeals their petition for certiorari with preliminary injunction questioning the interlocutory denial of their demurrer to evidence and motion for dismissal. The parties, respectively, thereafter filed their continent, reply, rejoinder and sur-rejoinder.chanroblesvirtuallawlibrary chanrobles virtual law library
The petition was set and called for oral argument in respondent court on July 10, 1979 and respondents-accused, as petitioners therein, then made their move personally and through counsel eschewing the presentation of any evidence in their behalf in the trial of the criminal case and praying that respondent appellate court treat their petition as if it were an appeal from a judgment of conviction and rule upon their "appeal." chanrobles virtual law library
After having required the parties to submit their respective memoranda on the question of whether it could so consider and convert the petition for certiorari as and into an "appeal," respondent court issued its challenged Resolution of September 18, 1979 reciting what transpired at the oral argument and ruling as follows: chanrobles virtual law library
Herein Petition for certiorari challenges the order of the court a quo denying petitioners 'Demurrer to the Evidence' as well as its order denying petitioners' motion for reconsideration. Without giving due course to the Petition, we required the respondents to comment and in the meantime restrained respondents from any further proceedings in Criminal Case No. CCC-VIII-2369-P.C.chanroblesvirtuallawlibrary chanrobles virtual law library
The pertinent facts, are as summarized in the People's memorandum, as follows:
On November 8, 1977, petitioners were charged before the Circuit Criminal Court of the Seventh Judicial District with the crime of estafa through misappropriation for refusing to return or account for the amount of US$ 999,000.00. which was erroneously remitted to them by the Manufacturers Hanover Bank of Pittsburgh. In due course, petitioners pleaded not guilty and the prosecution presented its evidence. After the prosecution had rested its case, petitioners tiled a demurrer to evidence. The same was denied by respondent Judge Onofre Villaluz.
The court a quo denied petitioners' 'Demurrer to Evidence' on its belief that the prosecution has established a prima facie case and because demurrer to evidence under Rule 35, Rules of Court is not applicable to criminal cases.chanroblesvirtuallawlibrary chanrobles virtual law library
The herein case was scheduled for oral argument on July 10, 1979, at which hearing, counsel for the petitioners manifested that they had no intention to present any further evidence in the criminal case; that on the basis of the evidence presented by the prosecution before the court a quo, they deserve an acquittal. They moved that the challenged order be considered a judgment against the petitioners and that the herein Petition for certiorari be considered as an appeal from the said judgment. Confronted with the manifestation of their counsel, the petitioners, by themselves affirmed their counsel's representation, thus: chanrobles virtual law library
Mr. JUSTICE RAMON G. GAVIOLA JR.: Are the petitioners here? chanrobles virtual law library
ATTY. BALGOS: Yes, your Honor. They are here. chanrobles virtual law library
Mr. JUSTICE RAMON G. GAVIOLA ,JR.: Make it of record that the petitioners are here. chanrobles virtual law library
Mr. JUSTICE RAMON G. GAVIOLA ,JR.: (to the petitioners) chanrobles virtual law library
Did you understand what your counsel said insofar as his manifestation is concerned to the effect that you are not going to present evidence? chanrobles virtual law library
PETITIONERS: Yes, your Honor. chanrobles virtual law library
Mr. JUSTICE RAMON G. GAVIOLA ,JR.: chanrobles virtual law library
Q - Do you also share your counsel's position that you consider the denial of your demurrer to the evidence as a verdict against you by the court a quo? chanrobles virtual law library
A - Yes, your Honor.chanroblesvirtuallawlibrary chanrobles virtual law library
Q - Do you also realize that if this petition is treated as though it is an appeal, and, a verdict is found by this court against you, you could no longer go back to the court of origin for a new trial? chanrobles virtual law library
A - Yes, your Honor.chanroblesvirtuallawlibrary chanrobles virtual law library
Q - And that your only are of relief is with the Supreme Court? chanrobles virtual law library
A - Yes, your Honor.
On the basis of the foregoing, we fined it pointless for Us to remand the record of the herein case to the court of origin for the lower court to do no more than impose the proper penalty. A review of the challenged order admits no other rationale. For clarity, however, we are incorporating pertinent portions of the findings upon which His Honor based his denial of petitioners' demurrer to the evidence.
(Note: The trial court's interlocutory order of denial of the demurrer to evidence and motion to dismiss is reproduced, but for brevity's sake is herein excerpted.) The trial court after ruling that "the prosecution has established a prima facie case" made a general dissertation as to the world- wide interest that the case aroused and that chanrobles virtual law library
... The Philippines can unquestionably take pride in the fact that justice as it is known, practised and accepted by highly civilized society can be attained here. This is so because Philippine laws are based on the quintessence of civilization's well established, undebatable, and impregnable norm of conduct, perception sense of values, and proper upbringing which, in turn, are in recognition of the supremacy of God's own laws.chanroblesvirtuallawlibrary chanrobles virtual law library
In bringing this case to the proper perspective, it is important to cite Chapter 22 of the Book of Deuteronomy in she Old Testament portion of the Bible: chanrobles virtual law library
If you see someone's ox or sheep wandering away, don't pretend you didn't see, it; take it back to its owner. If you don't know who the owner is, take it to your farm and keep it there until the owner comes looking for it, and then give it to him. The same applies to donkeys, clothings, or anything else you find. Keep it for its owner.chanroblesvirtuallawlibrary chanrobles virtual law library
In analogy , the one million dollars which the Javier couple received by mistake an amount which was nine-hundred-ninety-nine thousand dollars n excess of what was due them, as an inanimate object but, under the circumstances upon which the said amount found its way to them, it was akin to the movement of the ox or sheep (made as example in the Bible) that wandered. It went to the Javier couple, and the couple, instead of obeying the Bible's mandate to 'take it back to its owner,' kept the excess amount to themselves. They insisted in keeping it despite demands from the Mellon Bank to give it back.
It added that "A predominantly Christian country, the Philippines produced Christian legislators who lost no time in enacting laws based on the Laws of God" and that "(I)t is not only the Christian religion that mandates the return to its owner of anything found or given by mistake. Other great religious Mohammedanism, Buddhism, Shintoism - espouse the virtue of honesty, too. No wonder that the bodies of man-made laws all over the world reflect the same God-given mandate. As Christians are fully aware of, 'The Lord hates cheating and delights in honesty.' (Proverbs II)," and concluded as follows: chanrobles virtual law library
Considering the wide publicity generated by the Mellon Bank case, the world is indeed keenly waiting for the outcome. It has been very eager to find out if a foreign bank can attain justice in a court of law in the Philippines. Filipinos, of course, know the answer. They knew fully well that any person or any citizen of the world can attain it here.chanroblesvirtuallawlibrary chanrobles virtual law library
Implicit in the Philippine's bid for beneficial foreign instrument and joint econonic venture with Filipinos in a manner that would give the host people a just and reasonable share of profits in the development of their own country is the inherent capacity of its courts of law to administer justice. Beneficial foreign investment and joint economic venture would just be relegated to dreams if the host people are regarded as dishonest, cheaters, and deceivers and the country's courts of law incapable of meeting out elementary justice. Indeed, the Philippines will just be scaring away foreign investors all those who sincerely want to help in the development of this country - if Filipinos who steal, cheat and deceive were not held in check and were not meted out punishments by their own courts of law. The tourism program would collapse, too, for what foreign visitors would visit with a people who they think, does not value the virtue of honesty? chanrobles virtual law library
In the petitioners' motion for reconsideration it was pointed out that:
1. It was error to declare that a demurrer to the evidence is not applicable to criminal cases.chanroblesvirtuallawlibrary chanrobles virtual law library
2. It was error to deny the demurrer to the evidence on the basis of conjectures and speculations not based on the evidence presented by the prosecution.chanroblesvirtuallawlibrary chanrobles virtual law library
3. The order amounts to a pre-judgment of the case which practically declares the accused guilty as charged.
The motion for reconsideration was, however, denied for lack of merit.chanroblesvirtuallawlibrary chanrobles virtual law library
In the light of the foregoing and considering the right of the accused to a speedy trial, the appellants' motion is granted, hereby treating the herein Petition as an appeal, and hereby proceeding to decide herein case on the merits as soon as the respective briefs and/or memorandum of the parties are in.chanroblesvirtuallawlibrary chanrobles virtual law library
A review of the records show that on July 3, 1979, we required the court a quo to forward within ten (10) days from notice, the records and the stenographic notes of Criminal Case No. CC VIl-2369-PC for our consideration at the hearing scheduled for July 10, 1979. Since record does not show any compliance, the order is reiterated. Accordingly, the appellants are ordered to file their memorandum in lieu of Appellant's Brief with a period of twenty (20) days from the time basic record and transcripts are submitted and the appellees, their Appellees' Brief within a period of twenty (20) days from receipt of Appellants' Brief.
As indicated above, respondent court, through the division clerk of court, thereafter issued its admittedly "manifestly erroneous" Resolution of October 8, 1979 declaring the case submitted for decision without any briefs or memoranda having been filed (under the mistaken notion of the division clerk of court that such briefs or memoranda on the merits, pursuant to respondent court's questioned resolution considering the action before it as one of appeal, had already been filed), leading to the filing of the present action. The petitioner People in its petition for certiorari, prohibition and mandamus prays that the Court annul the two resolutions in question, prohibit respondent court from deciding the criminal case as if it were already an appeal and command said court to remand the case to the trial court for promulgation of judgment. As further prayed for, the Court issued on October 15, 1979 its temporary restraining order enjoining respondent court from enforcing its challenged resolutions of September 18, 1979 and October 8, 1979, and from further proceeding with the case before it.chanroblesvirtuallawlibrary chanrobles virtual law library
The Court finds the petition to be well taken, by virtue of the following considerations in amplification of those outlined hereinabove.chanroblesvirtuallawlibrary chanrobles virtual law library
1. The only question submitted to the respondent court in the certiorari petition filed by denying their demurrer to evidence and motion to dismiss - which was filed therein in aid of its appellate jurisdiction. 2 Such a petition was doomed to failure in view of the long settled rule that certiorari does not lie to challenge the trial court's interlocutory order finding in the exercise of its sound judgment and discretion that the prosecution's evidence has established a prima facie case and denying the accused's motion to fiss since as reaffirmed in Joseph vs. Villaluz, 3 (which controlling case was expressly noted by respondent court in the course of the hearing of July 10, 1979) that the appellate courts cannot and will not review in such special civil actions the prosecution's evidence and decide here and now in advance that it has or has not established beyond reasonable doubt the guilt of the accused and hence "this Court will not annul an interlocutory order denying a motion to dismiss a criminal case. Appeal is the proper remedy of the [accused] in order to have the findings of fact of the respondent judge reviewed by a superior court." Such special civil actions questioning the trial court's interlocutory order denying the accused's motion to dismiss the criminal case by way of demurrer to evidence, should be given short shrift since the orderly procedure prescribed by the Rules of Court is for the accused to present their evidence after which the trial court, on its evaluation of the evidence submitted by both the prosecution and the defense, may then properly render its judgment of conviction or acquittal.chanroblesvirtuallawlibrary chanrobles virtual law library
2. Respondents-accused's move at the hearing of July 10, 1979 waiving their right to present evidence and praying that respondent court unprecedentedly consider the trial court's interlocutory denial of the motion to dismiss as a "judgment of conviction" and convert their certiorari action to one of appeal from such "judgment" could not confer any jurisdiction or authority upon respondent court to do so. The moment the accused waived their right to present evidence and accepted the interlocutory order of denial as a verdict of conviction, thereby conceding the futility of their petition, its appellate jurisdiction ceased. The petition was filed with it in aid of its appellate jurisdiction and an it could do was to dismiss the petition accordingly for the trial court to render judgment imposing the corresponding penalty. At the hearing of July 10, 1979, Justice Paras had in his interpolation of the accused's counsel correctly brought this out, as per the transcript of the hearing submitted by respondent court with its comment, as follows: chanrobles virtual law library
MR. JUSTICE EDGARDO L. PARAS: chanrobles virtual law library
Now, in such a case has there been any penalty imposed by the court a quo? Now, if there is no penalty it will be very difficult for this court to affirm or to deny it since there is no penalty imposed as yet.chanroblesvirtuallawlibrary chanrobles virtual law library
ATTY. BALGOS: chanrobles virtual law library
I submit to the pronouncement of the Honorable Justice. ... Inasmuch as Judge Villaluz has already said that under the bible and to help the tourism program of the government and to aid the economic program of the government these people must be convicted. Why do we have to go back to Judge Villaluz and then just come up here again? We might as well resolve the case already here before this Honorable Court. ...chanroblesvirtuallawlibrary chanrobles virtual law library
Mr JUSTICE EDGARDO L. PARAS: chanrobles virtual law library
Mr. counsel, I think the court is aware of this fact that although generally an appeal here should be the remedy. I mean that this case cannot as yet be appealed. It is merely interlocutory. According to you are manifesting before us that your clients will not present evidence anymore. You said it will be a waste of time if we remand this to the lower court. But the court below has not yet imposed any penalty. Even assuming that it is convinced that your clients are guilty, it has not yet imposed any particular penalty. Do you think Mr. counsel that this court, Court of Appeals, can impose a penalty even if no such penalty has been given by the court a quo? chanrobles virtual law library
ATTY. BALGOS: chanrobles virtual law library
Yes, your Honor, I cannot find specific jurisprudence on this point ... Our penal code provides for penalties in a situation like that. So, I sincerely believe that this court as it is so inclined can find the accused guilty and impose upon them the requisite penalty provided for by law. We feel that this petition for certiorari can be considered a petition for review and you would then resolve the questions on the merits already. 4 chanrobles virtual law library
3. The accused's contention has been that their liability is civil and not criminal, as per their extensive comment at bar wherein they aver that "(J)udge Villaluz has obviously confused criminal responsibility with civil liability to the extent that where civil liability is contested in court, there must also be criminal responsibility. This is certainly wrong and confused. The Javiers have never denied receipt of the money, they have never denied their civil obligation to account for and return what was not rightfully theirs, what they have contested was the attitude of the Mellon Bank representatives and their unreasonable demand for the immediate reimbursement to the last cent - which is precisely the subject of a pending civil case." 5 While the trial court did make a general dissertation on Philippine laws being based on the Bible and the Laws of God without specifically mentioning the particular Article on Estafa of the Revised Penal Code under which the accused were charged, all such dissertations were but obiter dicta, and the determinative ruling was his finding of the prosecution having established a prima facie case with the documentary and testimonial evidence. The pleadings of the People, both in the trial and respondent courts in opposition to the accused's demurrer and motion to dismiss (as well as in the case at bar) had specified Article 315, paragraph 1, sub-paragraph (a) of the Revised Penal Code under which the accused were charged for misappropriation and conversion to their own use and benefit of the US$999,000.00. erroneously remitted to them but involving the duty and obligation on their part to return the same as well as complete undisputed details of the accused's massive withdrawals and disbursements of US$975,000.00 - in eleven days from their receipt of the US$1,000,000.00 bank remittance, complete with citations of authorities and jurisprudence. 6 The lack of express factual findings in the interlocutory order goes but to show the need of returning the case to the trial court for the rendition of judgment and imposition oil penalty in the exercise of its original and exclusive jurisdiction over the criminal case.chanroblesvirtuallawlibrary chanrobles virtual law library
4. Manifestly, respondent court was bereft of jurisdiction to grant accused's counsel's motion, supra, to by-pass the trial court and itself "find the accused guilty and impose upon them the requisite penalty provided by law" (with their proposal to consider the trial court's denial order as a "judgment of conviction") and then review its own verdict and imposition of penalty (with the conversion of the certiorari petition into one of review on appeal).chanroblesvirtuallawlibrary chanrobles virtual law library
The exclusive and original jurisdiction to hear the case for estafa involving the sum of US$ 999,000.00 and pass judgment upon the evidence and render its findings of fact and in the first instance adjudicate the guilt or non-guilt of the accused lies with the trial court i.e. the Court of First Instance 7 concurently with the Circuit Criminal Court, as in this case. 8 chanrobles virtual law library
On the other hand, the certiorari petition before it was filed only in aid of its appellate jurisdiction on the narrow issue of whether the trial court committed a grave abuse of discretion in denying the motion to dismiss the criminal case. Such a petition merited outright dismissal, more so with the accused's motion to consider the denial order as a verdict of conviction, as above shown.chanroblesvirtuallawlibrary chanrobles virtual law library
There was no judgment of the trial court over which respondent court could exercise its jurisdiction. The mandate of Article X, section 9 of the Constitution requires that "Every decision of a court of record shall state the facts and the law on which it is based." Rule 120, section 2 of the Rules of Court requires further that."The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the defendant and upon which the judgment is based. If it is of conviction the judgment or sentence shall state (a) the legal qualification of the offense constituted by the acts committed by the defendant, and the aggravating or mitigating circumstances attending the commission thereof, if there is any; (b) the participation of the defendant in the commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the penalty imposed upon the defendant; and (d) the civil liability or damages caused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved." It is obvious that the denial order was not such a judgment.chanroblesvirtuallawlibrary chanrobles virtual law library
Assuming further that the denial order could be deemed such a "judgment of conviction", since the facts are undisputed and based solely on the prosecution's evidence (with the accused having waived their right to present evidence), respondent court could not exercise appellate jurisdiction over the "appeal", since the case would involve purely questions of law, i.e. whether the admitted facts constitute or not the crime of estafa - which falls within the exclusive jurisdiction of the Supreme Court to review on certiorari under Section 17 of the Judiciary act, as amended by Republic Act No. 5440.chanroblesvirtuallawlibrary chanrobles virtual law library
5. There is no question that as per the record of the hearing of July 10, 1979, respondents-accused affirmed personally and through counsel that they categorically waived their right to present their evidence in the trial of the criminal case. Thus, Justice de la Fuente expressly asked: "You have to be consistent. If the case is denied and returned to the court of origin, you want to present witnesses" of their counsel, Atty. Balgos, who replied "No more," 9 and "so that our position is this - inasmuch as Mr. Justice de la Fuente asked whether if the petition were denied and the case were returned to the court of origin whether we will still present evidence. We are not presenting already." 10 Their counsel further replied to Justice Gaviola "Precisely I asked my client to come here today and for the record make manifest that they are not presenting any further evidence." 11 Respondents-accused affirmed their counsel's manifestations to respondent court as reproduced in respondent court's September 18, 1979 Resolution quoted hereinabove, wherein they expressed undertook that if a verdict were found against them, "they could no longer go back to the court of origin for a new trial" and that their "only area of relief is with the Supreme Court." Such express waiver is binding upon them and the trial court "has no alternative but to decide the case upon the evidence presented by the prosecution alone." 12 chanrobles virtual law library
The Court makes this clear in the exercise of its supervisory power so that there may be no further undue delay in this case, and the orderly procedure prescribed by the law on jurisdiction and judgments and by the Rules of Court be duly observed by all subordinate courts. Since the accused accepted as a judgment of conviction the trial court's denial of their demurrer to evidence and waived their right to present evidence, their petition for certiorari is ordered dismissed and the case remanded to the trial court for rendition of judgment and imposition of the corresponding penalty, as should have been done from the beginning. And any appeal that accused may take therefrom would have to be to this Court on a petition for review on certiorari under Republic Act No. 5440 in relation to section 17 of the Judiciary Act as amended thereby, since it would involve the pure question of law of whether their acts make them criminally liable for estafa or swindling, besides their accepted civil liability for the excess bank remittance of US$999,000.00.chanroblesvirtuallawlibrary chanrobles virtual law library
ACCORDINGLY, the petition is granted and the questioned resolutions of respondent Court of Appeals of September 18, 1979 and October 8, 1979, are hereby annulled and see aside, and the restraining order enjoining said respondent court from further proceedings in Case CA-G.R. No. SP-08339 is hereby made permanent. As further prayed for, Criminal Case No. CCC-VII 2369 P.C. against respondents-accused is ordered remanded to the Circuit Criminal Court of the Seventh Judicial District for prompt promulgation of judgment in accordance herewith. This decision is immediately executory upon its promulgation.chanroblesvirtuallawlibrary chanrobles virtual law library
SO ORDERED.
Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.chanroblesvirtuallawlibrary chanrobles virtual law library
Melencio-Herrera, J., concur in the result.

Endnotes:
1 Docketed as CA-G.R. No. 08339, entitled "Melchor J. Javier, Jr. and Victoria L. Javier vs. People of the Phil. and Hon. Onofre H. Villaluz, etc."
2 Under Rule 65, Section 4 of the Rules of Court.chanrobles virtual law library
3 89 SCRA 324 (April 10, 1979), citing Manalo vs. Mariano, 69 SCRA 80 (1976). See also to same effect: U.S. vs. Romero, 22 Phil. 565 (1912); U.S. vs. de la Cruz, 28 Phil. 279 (1914); and U.S. vs. Choa Chick, 36 Phil. 831 (l9l7).chanrobles virtual law library
4 Transcript of hearing of July 10, 1979, Annex B of respondent court's Comment; Record, pp. 313-314.chanrobles virtual law library
5 Record, p. 254.chanrobles virtual law library
6 Record, pp. 12, et seq., 92, p. 353-365, Record, cit. U.S. vs- Yap, 34 Phil. 102.chanrobles virtual law library
7 Section 17, Judiciary Act in conjunction with Article 315, Revised Penal Code. The cited statutes read: "Section 44. Original jurisdiction. - Courts of First Instance shall have original jurisdiction:
"... (f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or a fine of more than two hundred pesos; ...'"
Art. 315. Swindling (estafa). - Any person who shall defraud another by way of the means mentioned hereinbelow shall by punished by:
First. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.chanrobles virtual law library
8 Rep. Act 5179 section 1.chanrobles virtual law library
9 Transcript of hearing, p. 4, Rec., p. 307.chanrobles virtual law library
10 Idem, p. 5, Rec., p. 308.chanrobles virtual law library
11 Idem, pp. 8-9, Rec., pp. 311-312.chanrobles virtual law library
12 Abriol v. Homeres, 84 Phil. 525 (1949).
Filipino Couple Must Serve 20-Year Jail Term for Fraud
February 03, 1985|United Press International
MANILA, Philippines — The Supreme Court has affirmed a 20-year sentence on fraud charges against a Filipino couple who became instant millionaires after a U.S. bank made an erroneous remittance in 1977, officials said Friday.
In upholding a criminal court's decision in 1983, the high tribunal threw out the argument of Melchor and Victoria Javier that they accepted the money in good faith.
The Supreme Court, in its decision Thursday, ordered the immediate arrest and imprisonment of the couple.
The case stemmed from a $1,000 remittance to Manila by Victoria Javier's relative, Jose Ventosa, on May 27, 1977, through the First National Bank of Moundsville, W. Va.
The Moundsville bank sent the money via the Mellon Bank, which made the error and transmitted a check for $1 million.
The error was discovered on June 13, 1977. The Javiers by then claimed that they had spent the money.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 78953 July 31, 1991
COMMISSIONER OF INTERNAL REVENUE, Petitioner, vs. MELCHOR J. JAVIER, JR. and THE COURT OF TAX APPEALS, Respondents.
SARMIENTO, J.:
Central in this controversy is the issue as to whether or not a taxpayer who merely states as a footnote in his income tax return that a sum of money that he erroneously received and already spent is the subject of a pending litigation and there did not declare it as income is liable to pay the 50% penalty for filing a fraudulent return.chanroblesvirtuallawlibrary chanrobles virtual law library
This question is the subject of the petition for review before the Court of the portion of the Decision 1 dated July 27, 1983 of the Court of Tax Appeals (CTA) in C.T.A. Case No. 3393, entitled, "Melchor J. Javier, Jr. vs. Ruben B. Ancheta, in his capacity as Commissioner of Internal Revenue," which orders the deletion of the 50% surcharge from Javier's deficiency income tax assessment on his income for 1977.chanroblesvirtuallawlibrary chanrobles virtual law library
The respondent CTA in a Resolution 2 dated May 25, 1987, denied the Commissioner's Motion for Reconsideration 3 and Motion for New Trial 4 on the deletion of the 50% surcharge assessment or imposition.chanroblesvirtuallawlibrary chanrobles virtual law library
The pertinent facts as are accurately stated in the petition of private respondent Javier in the CTA and incorporated in the assailed decision now under review, read as follows:
xxx xxx xxx chanrobles virtual law library
2. That on or about June 3, 1977, Victoria L. Javier, the wife of the petitioner (private respondent herein), received from the Prudential Bank and Trust Company in Pasay City the amount of US$999,973.70 remitted by her sister, Mrs. Dolores Ventosa, through some banks in the United States, among which is Mellon Bank, N.A.chanroblesvirtuallawlibrary chanrobles virtual law library
3. That on or about June 29, 1977, Mellon Bank, N.A. filed a complaint with the Court of First Instance of Rizal (now Regional Trial Court), (docketed as Civil Case No. 26899), against the petitioner (private respondent herein), his wife and other defendants, claiming that its remittance of US$1,000,000.00 was a clerical error and should have been US$1,000.00 only, and praying that the excess amount of US$999,000.00 be returned on the ground that the defendants are trustees of an implied trust for the benefit of Mellon Bank with the clear, immediate, and continuing duty to return the said amount from the moment it was received.chanroblesvirtuallawlibrary chanrobles virtual law library
4. That on or about November 5, 1977, the City Fiscal of Pasay City filed an Information with the then Circuit Criminal Court (docketed as CCC-VII-3369-P.C.) charging the petitioner (private respondent herein) and his wife with the crime of estafa, alleging that they misappropriated, misapplied, and converted to their own personal use and benefit the amount of US$999,000.00 which they received under an implied trust for the benefit of Mellon Bank and as a result of the mistake in the remittance by the latter.chanroblesvirtuallawlibrary chanrobles virtual law library
5. That on March 15, 1978, the petitioner (private respondent herein) filed his Income Tax Return for the taxable year 1977 showing a gross income of P53,053.38 and a net income of P48,053.88 and stating in the footnote of the return that "Taxpayer was recipient of some money received from abroad which he presumed to be a gift but turned out to be an error and is now subject of litigation." chanrobles virtual law library
6. That on or before December 15, 1980, the petitioner (private respondent herein) received a letter from the acting Commissioner of Internal Revenue dated November 14, 1980, together with income assessment notices for the years 1976 and 1977, demanding that petitioner (private respondent herein) pay on or before December 15, 1980 the amount of P1,615.96 and P9,287,297.51 as deficiency assessments for the years 1976 and 1977 respectively. . . .chanroblesvirtuallawlibrary chanrobles virtual law library
7. That on December 15, 1980, the petitioner (private respondent herein) wrote the Bureau of Internal Revenue that he was paying the deficiency income assessment for the year 1976 but denying that he had any undeclared income for the year 1977 and requested that the assessment for 1977 be made to await final court decision on the case filed against him for filing an allegedly fraudulent return. . . .chanroblesvirtuallawlibrary chanrobles virtual law library
8. That on November 11, 1981, the petitioner (private respondent herein) received from Acting Commissioner of Internal Revenue Romulo Villa a letter dated October 8, 1981 stating in reply to his December 15, 1980 letter-protest that "the amount of Mellon Bank's erroneous remittance which you were able to dispose, is definitely taxable." . . . 5 chanrobles virtual law library
The Commissioner also imposed a 50% fraud penalty against Javier.chanroblesvirtuallawlibrary chanrobles virtual law library
Disagreeing, Javier filed an appeal 6 before the respondent Court of Tax Appeals on December 10, 1981.chanroblesvirtuallawlibrary chanrobles virtual law library
The respondent CTA, after the proper proceedings, rendered the challenged decision. We quote the concluding portion:
We note that in the deficiency income tax assessment under consideration, respondent (petitioner here) further requested petitioner (private respondent here) to pay 50% surcharge as provided for in Section 72 of the Tax Code, in addition to the deficiency income tax of P4,888,615.00 and interest due thereon. Since petitioner (private respondent) filed his income tax return for taxable year 1977, the 50% surcharge was imposed, in all probability, by respondent (petitioner) because he considered the return filed false or fraudulent. This additional requirement, to our mind, is much less called for because petitioner (private respondent), as stated earlier, reflected in as 1977 return as footnote that "Taxpayer was recipient of some money received from abroad which he presumed to be gift but turned out to be an error and is now subject of litigation." chanrobles virtual law library
From this, it can hardly be said that there was actual and intentional fraud, consisting of deception willfully and deliberately done or resorted to by petitioner (private respondent) in order to induce the Government to give up some legal right, or the latter, due to a false return, was placed at a disadvantage so as to prevent its lawful agents from proper assessment of tax liabilities. (Aznar vs. Court of Tax Appeals, L-20569, August 23, 1974, 56 (sic) SCRA 519), because petitioner literally "laid his cards on the table" for respondent to examine. Error or mistake of fact or law is not fraud. (Insular Lumber vs. Collector, L-7100, April 28, 1956.). Besides, Section 29 is not too plain and simple to understand. Since the question involved in this case is of first impression in this jurisdiction, under the circumstances, the 50% surcharge imposed in the deficiency assessment should be deleted. 7 chanrobles virtual law library
The Commissioner of Internal Revenue, not satisfied with the respondent CTA's ruling, elevated the matter to us, by the present petition, raising the main issue as to: chanrobles virtual law library
WHETHER OR NOT PRIVATE RESPONDENT IS LIABLE FOR THE 50% FRAUD PENALTY? 8 chanrobles virtual law library
On the other hand, Javier candidly stated in his Memorandum, 9 that he "did not appeal the decision which held him liable for the basic deficiency income tax (excluding the 50% surcharge for fraud)." However, he submitted in the same memorandum "that the issue may be raised in the case not for the purpose of correcting or setting aside the decision which held him liable for deficiency income tax, but only to show that there is no basis for the imposition of the surcharge." This subsequent disavowal therefore renders moot and academic the posturings articulated in as Comment 10 on the non-taxability of the amount he erroneously received and the bulk of which he had already disbursed. In any event, an appeal at that time (of the filing of the Comments) would have been already too late to be seasonable. The petitioner, through the office of the Solicitor General, stresses that:
xxx xxx xxx chanrobles virtual law library
The record however is not ambivalent, as the record clearly shows that private respondent is self-convinced, and so acted, that he is the beneficial owner, and of which reason is liable to tax. Put another way, the studied insinuation that private respondent may not be the beneficial owner of the money or income flowing to him as enhanced by the studied claim that the amount is "subject of litigation" is belied by the record and clearly exposed as a fraudulent ploy, as witness what transpired upon receipt of the amount.chanroblesvirtuallawlibrary chanrobles virtual law library
Here, it will be noted that the excess in the amount erroneously remitted by MELLON BANK for the amount of private respondent's wife was $999,000.00 after opening a dollar account with Prudential Bank in the amount of $999,993.70, private respondent and his wife, with haste and dispatch, within a span of eleven (11) electric days, specifically from June 3 to June 14, 1977, effected a total massive withdrawal from the said dollar account in the sum of $975,000.00 or P7,020,000.00. . . . 11
In reply, the private respondent argues:
xxx xxx xxx chanrobles virtual law library
The petitioner contends that the private respondent committed fraud by not declaring the "mistaken remittance" in his income tax return and by merely making a footnote thereon which read: "Taxpayer was the recipient of some money from abroad which he presumed to be a gift but turned out to be an error and is now subject of litigation." It is respectfully submitted that the said return was not fraudulent. The footnote was practically an invitation to the petitioner to make an investigation, and to make the proper assessment.chanroblesvirtuallawlibrary chanrobles virtual law library
The rule in fraud cases is that the proof "must be clear and convincing" (Griffiths v. Comm., 50 F [2d] 782), that is, it must be stronger than the "mere preponderance of evidence" which would be sufficient to sustain a judgment on the issue of correctness of the deficiency itself apart from the fraud penalty. (Frank A. Neddas, 40 BTA 672). The following circumstances attendant to the case at bar show that in filing the questioned return, the private respondent was guided, not by that "willful and deliberate intent to prevent the Government from making a proper assessment" which constitute fraud, but by an honest doubt as to whether or not the "mistaken remittance" was subject to tax.chanroblesvirtuallawlibrary chanrobles virtual law library
First, this Honorable Court will take judicial notice of the fact that so-called "million dollar case" was given very, very wide publicity by media; and only one who is not in his right mind would have entertained the idea that the BIR would not make an assessment if the amount in question was indeed subject to the income tax.chanroblesvirtuallawlibrary chanrobles virtual law library
Second, as the respondent Court ruled, "the question involved in this case is of first impression in this jurisdiction" (See p. 15 of Annex "A" of the Petition). Even in the United States, the authorities are not unanimous in holding that similar receipts are subject to the income tax. It should be noted that the decision in the Rutkin case is a five-to-four decision; and in the very case before this Honorable Court, one out of three Judges of the respondent Court was of the opinion that the amount in question is not taxable. Thus, even without the footnote, the failure to declare the "mistaken remittance" is not fraudulent.chanroblesvirtuallawlibrary chanrobles virtual law library
Third, when the private respondent filed his income tax return on March 15, 1978 he was being sued by the Mellon Bank for the return of the money, and was being prosecuted by the Government for estafa committed allegedly by his failure to return the money and by converting it to his personal benefit. The basic tax amounted to P4,899,377.00 (See p. 6 of the Petition) and could not have been paid without using part of the mistaken remittance. Thus, it was not unreasonable for the private respondent to simply state in his income tax return that the amount received was still under litigation. If he had paid the tax, would that not constitute estafa for using the funds for his own personal benefit? and would the Government refund it to him if the courts ordered him to refund the money to the Mellon Bank? 12
xxx xxx xxx
Under the then Section 72 of the Tax Code (now Section 248 of the 1988 National Internal Revenue Code), a taxpayer who files a false return is liable to pay the fraud penalty of 50% of the tax due from him or of the deficiency tax in case payment has been made on the basis of the return filed before the discovery of the falsity or fraud.chanroblesvirtuallawlibrary chanrobles virtual law library
We are persuaded considerably by the private respondent's contention that there is no fraud in the filing of the return and agree fully with the Court of Tax Appeals' interpretation of Javier's notation on his income tax return filed on March 15, 1978 thus: "Taxpayer was the recipient of some money from abroad which he presumed to be a gift but turned out to be an error and is now subject of litigation that it was an "error or mistake of fact or law" not constituting fraud, that such notation was practically an invitation for investigation and that Javier had literally "laid his cards on the table." 13 chanrobles virtual law library
In Aznar v. Court of Tax Appeals, 14 fraud in relation to the filing of income tax return was discussed in this manner:
. . . The fraud contemplated by law is actual and not constructive. It must be intentional fraud, consisting of deception willfully and deliberately done or resorted to in order to induce another to give up some legal right. Negligence, whether slight or gross, is not equivalent to the fraud with intent to evade the tax contemplated by law. It must amount to intentional wrong-doing with the sole object of avoiding the tax. It necessarily follows that a mere mistake cannot be considered as fraudulent intent, and if both petitioner and respondent Commissioner of Internal Revenue committed mistakes in making entries in the returns and in the assessment, respectively, under the inventory method of determining tax liability, it would be unfair to treat the mistakes of the petitioner as tainted with fraud and those of the respondent as made in good faith.
Fraud is never imputed and the courts never sustain findings of fraud upon circumstances which, at most, create only suspicion and the mere understatement of a tax is not itself proof of fraud for the purpose of tax evasion. 15
A "fraudulent return" is always an attempt to evade a tax, but a merely "false return" may not be, Rick v. U.S., App. D.C., 161 F. 2d 897, 898. 16 chanrobles virtual law library
In the case at bar, there was no actual and intentional fraud through willful and deliberate misleading of the government agency concerned, the Bureau of Internal Revenue, headed by the herein petitioner. The government was not induced to give up some legal right and place itself at a disadvantage so as to prevent its lawful agents from proper assessment of tax liabilities because Javier did not conceal anything. Error or mistake of law is not fraud. The petitioner's zealousness to collect taxes from the unearned windfall to Javier is highly commendable. Unfortunately, the imposition of the fraud penalty in this case is not justified by the extant facts. Javier may be guilty of swindling charges, perhaps even for greed by spending most of the money he received, but the records lack a clear showing of fraud committed because he did not conceal the fact that he had received an amount of money although it was a "subject of litigation." As ruled by respondent Court of Tax Appeals, the 50% surcharge imposed as fraud penalty by the petitioner against the private respondent in the deficiency assessment should be deleted.chanroblesvirtuallawlibrary chanrobles virtual law library
WHEREFORE, the petition is DENIED and the decision appealed from the Court of Tax Appeals is AFFIRMED. No costs.chanroblesvirtuallawlibrary chanrobles virtual law library
SO ORDERED.
Melencio-Herrera, Padilla and Regalado, JJ., concur.chanroblesvirtuallawlibrary chanrobles virtual law library
Paras, J., took no part.




*               Designated additional member per Special Order No. 807.
**            Designated additional member per Special Order No. 776.
[1][1]           Under Rule 45 of the Rules of Court.
[2][2]Rollo , pp. 30-38. Penned by Associate Justice Rosmari D. Carandang, with Associate Justices Conrado M. Vasquez, Jr. and  Mercedes Gozo-Dadole, concurring.
[3][3]Id. at 57. Penned by Associate Justice Rosmari D. Carandang with Associate Justices Conrado M. Vasquez, Jr. and Mercedes Gozo-Dadole, concurring. 
[4][4]Id. at 58-62. Penned by RTC Judge Mario Guariña III.
[5][5]Id. at 5-6.
[6][6] Records, pp. 23-24.
[7][7]         Rollo, p. 8.
[8][8]Id. at  6-7.
[9][9]        Id. at 8-9.
[10][10]        Id. at  69.
[11][11]        Id. at 70. 
[12][12]        Id. Petitioner showed a similar notice posted with regard to another junket operator GIT.
[13][13]        Id.
[14][14]        Id. at 121.
[15][15]Presidential Decree No. 1869, Consolidating and Amending Presidential Decree Nos. 1067-A, 1067-B, 1067-C, 1399 and 1632 Relative to the Franchise and Powers of the Philippine Amusement and Gaming Corporation (PAGCOR). Took effect on 11 July 1983.
[16][16]Rollo, pp. 60-61.
[17][17]Id.
[18][18]Id.
[19][19]Id. at  61-62.
[20][20]Id. at 33.
[21][21]Id.
[22][22]Id. at 34.
[23][23]         Id.
[24][24]         Id. at 34-35.
[25][25]         Id.
[26][26]Art. 1883. If an agent acts in his own name, the principal has no right of action against the persons with whom the agent has contracted, neither have such persons against the principal.

                         In such case, the agent is the one directly bound in favor of the person with whom he has contracted, as if the transaction were his own, except when the contract involves things belonging to the principal.

                      The provisions of this article shall be understood to be without prejudice to the actions between the principal and agent.
[27][27]Rollo, p. 35.
[28][28]         Id.
[29][29]Id. at 36.
[30][30]Art. 2152. The officious manager is personally liable for contracts which he has entered into with third persons, even though he acted in the name of the owner, and there shall be no right of action between the owner and third persons. These provisions shall not apply:
                                                (1) If the owner has expressly or tacitly ratified the management, or
                                (2) When the contract refers to things pertaining to the owner of the business.
[31][31]            Rollo, p. 36. 
[32][32]Id.
[33][33]Id. at 36, 38.
[34][34]Id. at 12.
[35][35]         United States v. Salaveria, 39 Phil. 102, 112 (1918).
[36][36]People v. Punto, 68 Phil. 481, 482 (1939).
[37][37] Prescribing Stiffer Penalties on Illegal Gambling. Took effect on  11 June 1978.
[38][38]Gambling and Illegal Lottery are crimes covered by Chapter One, Title VI (Crimes against Public Morals) of the Revised Penal Code. 
[40][40]        464 Phil. 375, 385-386 (2004).
[41][41]        Id.
[42][42]Art. 2014. No action can be maintained by the winner for the collection of what he has won in a game of chance. But any loser in a game of chance may recover his loss from the winner, with legal interest from the time he paid the amount lost, and subsidiarily from the operator or manager of the gambling house.
[43][43] An  Act Further Amending Presidential Decree No. 1869, Otherwise Known as PAGCOR Charter. Took effect on 20 June 2007.

                                 Prior to the amendment, Section 3(h) of the PAGCOR Charter (PD 1869) reads as follows:
                                                                   SEC. 3. Corporate Powers. - The Corporation shall have the following powers and functions, among others:
                                                                x x x
                                                                                h) to enter into, make, perform, and carry out contracts of every kind and for any lawful purpose pertaining to the business of the Corporation, or in any manner incident thereto, as principal, agent or otherwise, with any person, firm, association or               corporation.
[44][44] Erectors, Inc. v. National Labor Relations Commission, 326 Phil. 640, 646 (1996).
[45][45] Agpalo, Ruben, Statutory Construction (5th ed., 2003), p. 355.
[46][46] Cebu Portland Cement Co. v. Collector of Internal Revenue, 134 Phil. 735, 740 (1968).
[47][47]De Leon, Hector S., Comments and Cases on Partnership, Agency and Trusts, 5th edition, 1999, p. 411.
[48][48]Woodchild Holdings, Inc. v. Roxas Electric and Construction Company, Inc., 479 Phil. 896, 914 (2004).
[49][49] Supra note 47 at 410.
[50][50]Tuazon v. Heirs of Bartolome Ramos, G.R. No. 156262, 14 July 2005, 463 SCRA 408, 415.
[51][51]Angeles v. Philippine National Railways, G.R. No. 150128, 31 August 2006, 500 SCRA 444, 452.
[52][52]Formerly known as Silahis Hotel.
[53][53]         Rollo, p. 124.
[54][54]Id.
[55][55]Id. at 125.
[56][56]Id.
[57][57]Id.
[58][58]Bordador v. Luz, 347 Phil. 654, 662 (1997).
[59][59]Eurotech Industrial Technologies, Inc. v. Cuizon, G.R. No. 167552, 23 April 2007, 521 SCRA 584, 593.
[60][60]Victorias Milling Co., Inc. v. Court of Appeals, 389 Phil. 184, 196 (2000).
[61][61] Supra note 50 at 415.
[62][62]Litonjua, Jr. v. Eternit Corporation, G.R. No. 144805, 8 June 2006, 490 SCRA 204, 225.
[63][63] Supra note 48 at 914.
[64][64]Francisco v. Herrera, 440 Phil. 841, 849 (2002).
[65][65]Art. 1409. The following contracts are inexistent and void from the beginning:
                               x x x
                                 (7) Those expressly prohibited or declared void by law.

                                       These  contracts  cannot be ratified. Neither can the right to set up the defense of illegality be waived.

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