ESCHEAT of bank deposits; procedures under Act No. 3936

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/192413.htm

"x x x.

We quote the pertinent provision of Act No. 3936, as amended, on the rule on service of processes, to wit:

Sec. 3. Whenever the Solicitor General shall be informed of such unclaimed balances, he shall commence an action or actions in the name of the People of the Republic of the Philippines in the Court of First Instance of the province or city where the bank, building and loan association or trust corporation is located,in which shall be joined as parties the bank, building and loan association or trust corporation and all such creditors or depositors. All or any of such creditors or depositors or banks, building and loan association or trust corporations may be included in one action. Service of process in such action or actions shall be made by delivery of a copy of the complaint and summons to the president, cashier, or managing officer of each defendant bank, building and loan association or trust corporation and by publication of a copy of such summons in a newspaper of general circulation, either in English, in Filipino, or in a local dialect, published in the locality where the bank, building and loan association or trust corporation is situated, if there be any, and in case there is none, in the City of Manila, at such time as the court may order. Upon the trial, thecourt must hear all parties who have appeared therein, and if it be determined that such unclaimed balances in any defendant bank, building and loan association or trust corporation are unclaimed as hereinbefore stated, then the court shall render judgment in favor of the Government of the Republic of the Philippines, declaring that said unclaimed balances have escheated to the Government of the Republic of the Philippines and commanding said bank, building and loan association or trust corporation to forthwith deposit the same with the Treasurer of the Philippines to credit of the Government of the Republic of the Philippines to be used as the National Assembly may direct.

At the time of issuing summons in the action above provided for, the clerk of court shall also issue a notice signed by him, giving the title and number of said action, and referring to the complaint therein, anddirected to all persons, other than those named as defendants therein, claiming any interest in any unclaimed balance mentioned in said complaint, and requiring them to appear within sixty days after the publication or first publication, if there are several, of such summons, and show cause, if they have any, why the unclaimed balances involved in said action should not be deposited with the Treasurer of the Philippines as in this Act provided and notifying them that if they do not appear and show cause, the Government of the Republic of the Philippines will apply to the court for the relief demanded in the complaint. A copy of said notice shall be attached to, and published with the copy of, said summons required to be published as above, and at the end of the copy of such notice so published, there shall be a statement of the date of publication, or first publication, if there are several, of said summons and notice. Any person interested may appear in said action and become a party thereto. Upon the publication or the completion of the publication, if there are several, of the summons and notice, and the service of the summons on the defendant banks, building and loan associations or trust corporations, the court shall have full and complete jurisdiction in the Republic of the Philippines over the said unclaimed balances and over the persons having or claiming any interest in the said unclaimed balances, or any of them, and shall have full and complete jurisdiction to hear and determine the issues herein, and render the appropriate judgment thereon. (Emphasis supplied.)

Hence, insofar as banks are concerned, service of processes is made by delivery of a copy of the complaint and summons upon the president, cashier, or managing officer of the defendant bank.[8] On the other hand, as to depositors or other claimants of the unclaimed balances, service is made by publication of a copy of the summons in a newspaper of general circulation in the locality where the institution is situated.[9] A notice about the forthcoming escheat proceedings must also be issued and published, directing and requiring all persons who may claim any interest in the unclaimed balances to appear before the court and show cause why the dormant accounts should not be deposited with the Treasurer.

Accordingly, the CA committed reversible error when it ruled that the issuance of individual notices upon respondents was a jurisdictional requirement, and that failure to effect personal service on them rendered the Decision and the Order of the RTC void for want of jurisdiction. Escheat proceedings are actions in rem,[10] whereby an action is brought against the thing itself instead of the person.[11]Thus, an action may be instituted and carried to judgment without personal service upon the depositors or other claimants.[12] Jurisdiction is secured by the power of the court over the res.[13] Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as publication is considered a general and constructive notice to all persons interested.[14]

Nevertheless, we find sufficient grounds to affirm the CA on the exclusion of the funds allocated for the payment of the Manager’s Check in the escheat proceedings.

Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without there being an interested person having a legal claim thereto.[15] In the case of dormant accounts, the state inquires into the status, custody, and ownership of the unclaimed balance to determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor.[16] If after the proceedings the property remains without a lawful owner interested to claim it, the property shall be reverted to the state “to forestall an open invitation to self-service by the first comers.”[17] However, if interested parties have come forward and lain claim to the property, the courts shall determine whether the credit or deposit should pass to the claimants or be forfeited in favor of the state.[18] We emphasize that escheat is not a proceeding to penalize depositors for failing to deposit to or withdraw from their accounts. It is a proceeding whereby the state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that they have been abandoned, forgotten, or without an owner.[19]

Act No. 3936, as amended, outlines the proper procedure to be followed by banks and other similar institutions in filing a sworn statement with the Treasurer concerning dormant accounts:

Sec. 2. Immediately after the taking effect of this Act and within the month of January of every odd year, all banks, building and loan associations, and trust corporations shall forward to the Treasurer of the Philippines a statement, under oath, of their respective managing officers, of all credits and deposits held by them in favor of persons known to be dead, or who have not made further deposits or withdrawals during the preceding ten years or more, arranged in alphabetical order according to the names of creditors and depositors, and showing:

(a)     The names and last known place of residence or post office addresses of the persons in whose favor such unclaimed balances stand;

(b)     The amount and the date of the outstanding unclaimed balance and whether the same is in money or in security, and if the latter, the nature of the same;

(c)     The date when the person in whose favor the unclaimed balance stands died, if known, or the date when he made his last deposit or withdrawal; and

(d)    The interest due on such unclaimed balance, if any, and the amount thereof.

A copy of the above sworn statement shall be posted in a conspicuous place in the premises of the bank, building and loan association, or trust corporation concerned for at least sixty days from the date of filing thereof: Provided, That immediately before filing the above sworn statement, the bank, building and loan association, and trust corporation shall communicate with the person in whose favor the unclaimed balance stands at his last known place of residence or post office address.

It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General from time to time the existence of unclaimed balances held by banks, building and loan associations, and trust corporations. (Emphasis supplied.)

As seen in the afore-quoted provision, the law sets a detailed system for notifying depositors of unclaimed balances. This notification is meant to inform them that their deposit could be escheated if left unclaimed. Accordingly, before filing a sworn statement, banks and other similar institutions are under obligation to communicate with owners of dormant accounts. The purpose of this initial notice is for a bank to determine whether an inactive account has indeed been unclaimed, abandoned, forgotten, or left without an owner. If the depositor simply does not wish to touch the funds in the meantime, but still asserts ownership and dominion over the dormant account, then the bank is no longer obligated to include the account in its sworn statement.[20] It is not the intent of the law to force depositors into unnecessary litigation and defense of their rights, as the state is only interested in escheating balances that have been abandoned and left without an owner.

In case the bank complies with the provisions of the law and the unclaimed balances are eventually escheated to the Republic, the bank “shall not thereafter be liable to any person for the same and any action which may be brought by any person against in any bank xxx for unclaimed balances so deposited xxx shall be defended by the Solicitor General without cost to such bank.”[21] Otherwise, should it fail to comply with the legally outlined procedure to the prejudice of the depositor, the bank may not raise the defense provided under Section 5 of Act No. 3936, as amended.

Petitioner asserts[22] that the CA committed a reversible error when it required RCBC to send prior notices to respondents about the forthcoming escheat proceedings involving the funds allocated for the payment of the Manager’s Check. It explains that, pursuant to the law, only those “whose favor such unclaimed balances stand” are entitled to receive notices. Petitioner argues that, since the funds represented by the Manager’s Check were deemed transferred to the credit of the payee upon issuance of the check, the proper party entitled to the notices was the payee – Rosmil – and not respondents. Petitioner then contends that, in any event, it is not liable for failing to send a separate notice to the payee, because it did not have the address of Rosmil. Petitioner avers that it was not under any obligation to record the address of the payee of a Manager’s Check.

In contrast, respondents Hi-Tri and Bakunawa allege[23] that they have a legal interest in the fund allocated for the payment of the Manager’s Check. They reason that, since the funds were part of the Compromise Agreement between respondents and Rosmil in a separate civil case, the approval and eventual execution of the agreement effectively reverted the fund to the credit of respondents. Respondents further posit that their ownership of the funds was evidenced by their continued custody of the Manager’s Check.

x x x."

The mere issuance of a manager’s check does not ipso facto work as an automatic transfer of funds to the account of the payee.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/192413.htm

"x x x.

An ordinary check refers to a bill of exchange drawn by a depositor (drawer) on a bank (drawee),[24] requesting the latter to pay a person named therein (payee) or to the order of the payee or to the bearer, a named sum of money.[25]  The issuance of the check does not of itself operate as an assignment of any part of the funds in the bank to the credit of the drawer.[26] Here, the bank becomes liable only after it accepts or certifies the check.[27] After the check is accepted for payment, the bank would then debit the amount to be paid to the holder of the check from the account of the depositor-drawer.

There are checks of a special type called manager’s or cashier’s checks. These are bills of exchange drawn by the bank’s manager or cashier, in the name of the bank, against the bank itself.[28]Typically, a manager’s or a cashier’s check is procured from the bank by allocating a particular amount of funds to be debited from the depositor’s account or by directly paying or depositing to the bank the value of the check to be drawn. Since the bank issues the check in its name, with itself as the drawee, the check is deemed accepted in advance.[29] Ordinarily, the check becomes the primary obligation of the issuing bank and constitutes its written promise to pay upon demand.[30]

Nevertheless, the mere issuance of a manager’s check does not ipso facto work as an automatic transfer of funds to the account of the payee. In case the procurer of the manager’s or cashier’s check retains custody of the instrument, does not tender it to the intended payee, or fails to make an effective delivery, we find the following provision on undelivered instruments under the Negotiable Instruments Law applicable:[31]

Sec. 16. Delivery; when effectual; when presumed. – Every contract on a negotiable instrument isincomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and, in such case, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. (Emphasis supplied.)

          Petitioner acknowledges that the Manager’s Check was procured by respondents, and that the amount to be paid for the check would be sourced from the deposit account of Hi-Tri.[32] When Rosmil did not accept the Manager’s Check offered by respondents, the latter retained custody of the instrument instead of cancelling it. As the Manager’s Check neither went to the hands of Rosmil nor was it further negotiated to other persons, the instrument remained undelivered. Petitioner does not dispute the fact that respondents retained custody of the instrument.[33]

Since there was no delivery, presentment of the check to the bank for payment did not occur. An order to debit the account of respondents was never made. In fact, petitioner confirms that the Manager’s Check was never negotiated or presented for payment to its Ermita Branch, and that the allocated fund is still held by the bank.[34] As a result, the assigned fund is deemed to remain part of the account of Hi-Tri, which procured the Manager’s Check. The doctrine that the deposit represented by a manager’s check automatically passes to the payee is inapplicable, because the instrument – although accepted in advance – remains undelivered. Hence, respondents should have been informed that the deposit had been left inactive for more than 10 years, and that it may be subjected to escheat proceedings if left unclaimed.

After a careful review of the RTC records, we find that it is no longer necessary to remand the case for hearing to determine whether the claim of respondents was valid. There was no contention that they were the procurers of the Manager’s Check. It is undisputed that there was no effective delivery of the check, rendering the instrument incomplete. In addition, we have already settled that respondents retained ownership of the funds. As it is obvious from their foregoing actions that they have not abandoned their claim over the fund, we rule that the allocated deposit, subject of the Manager’s Check, should be excluded from the escheat proceedings. We reiterate our pronouncement that the objective of escheat proceedings is state forfeiture of unclaimed balances. We further note that there is nothing in the records that would show that the OSG appealed the assailed CA judgments. We take this failure to appeal as an indication of disinterest in pursuing the escheat proceedings in favor of the Republic.

x x x."

Dishonored checks as proofs of pre-existing obligation or as guarantee for the performance of a future obligation.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/185522.htm#_ftnref27

"x x x.

We find, however, that aside from its bare assertions on appeal, SMC failed to present any evidence to prove that cash transactions were treated differently from check transactions. Respondent correctly argues that if the check transactions were covered by other statements of account, petitioner should have presented evidence of those transactions during the proceedings before the lower court.[33]

In any event, we cannot allow SMC to recover the amount of ₱921,215 from respondent, as it failed to prove the existence of the purported indebtedness. The records are bereft of any evidence, other than the dishonored checks, establishing the existence of that obligation. Checks, however, are not issued merely for the payment of a preexisting obligation. They may likewise be issued as a guarantee for the performance of a future obligation. In this case, it was sufficiently established that the dishonored checks were issued merely to guarantee the performance of a future obligation; that is, the payment of the net value of the goods after the value of the empty bottles and beer cases returned to petitioner were deducted from the gross value of the goods delivered to respondent.

x x x."

The Offer of Compromise was clearly not made in the context of a criminal proceeding and, therefore, cannot be considered as an implied admission of guilt.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/185522.htm#_ftnref27

"x x x.

Contrary to petitioner’s contention, the aforequoted letter does not contain an express acknowledgment of liability. At most, what respondent acknowledged was the receipt of the statement of account, not the existence of her liability to petitioner.

Furthermore, the fact that respondent made a compromise offer to petitioner SMC cannot be considered as an admission of liability. In Pentagon Steel Corporation v. Court of Appeals,[26] we examined the reasons why compromise offers must not be considered as evidence against the offeror:

First, since the law favors the settlement of controversies out of court, a person is entitled to "buy his or her peace" without danger of being prejudiced in case his or her efforts fail; hence, any communication made toward that end will be regarded as privileged. Indeed, if every offer to buy peace could be used as evidence against a person who presents it, many settlements would be prevented and unnecessary litigation would result, since no prudent person would dare offer or entertain a compromise if his or her compromise position could be exploited as a confession of weakness.

Second, offers for compromise are irrelevant because they are not intended as admissions by the parties making them. A true offer of compromise does not, in legal contemplation, involve an admission on the part of a defendant that he or she is legally liable, or on the part of a plaintiff, that his or her claim is groundless or even doubtful, since it is made with a view to avoid controversy and save the expense of litigation. It is the distinguishing mark of an offer of compromise that it is made tentatively, hypothetically, and in contemplation of mutual concessions. [27] (citations omitted)

Petitioner further argues that respondent’s Offer of Compromise may be received in evidence as an implied admission of guilt.[28] It quotes Rule 130, Section 27 of the Revised Rules on Evidence, which states:

Sec. 27. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

We do not agree. As correctly pointed out by respondent, the Offer of Compromise dated 5 December 2000 was made prior to the filing of the criminal complaint against her on 9 March 2001 for a violation of the Bouncing Checks Law.[29] The Offer of Compromise was clearly not made in the context of a criminal proceeding and, therefore, cannot be considered as an implied admission of guilt.

Finally, during the testimony of respondent and after her receipt of the Statement of Account from SMC, she recanted the contents of the Offer of Compromise. She explained that, at the time she had the letter prepared, the final amount owed to petitioner SMC was yet undetermined; and that she was constantly facing threats of imprisonment from petitioner’s agents. [30] The trial courts and the CA gave weight to her justification,[31] and we find no cogent reason to disturb their findings. We rule, therefore, that the Offer of Compromise may not be considered as evidence against respondent Kalalo, nor can it be the basis of her liability to petitioner in the amount of ₱921,215.

x x x."

Supreme Court may require the parties to submit evidence in the interest of justice, per Rule 45, Section 7 of the Rules of Court.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/180974.htm#_ftnref38

"x x x.

While it is true that some of the documents required by this Court to be submitted by the parties were not presented at the trial stage, when the legal issues raised begs the reception of that evidence – especially considering that a case, like the present one  has been pending for more than a decade – then the Court may require the parties to submit such evidence in the interest of justice.  This is clearly provided under Rule 45, Section 7 of the Rules of Court.[38] 


x x x."

Fiduciary nature of banking

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/180974.htm#_ftnref29

"x x x.

On a final note, Republic Act No. 8971, or the General Banking Law of 2000, recognizes the vital role of banks in providing an environment conducive to the sustained development of the national economy and the fiduciary nature of banking; thus, the law requires banks to have high standards of integrity and performance. The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family.[39] In the case at bar, petitioner itself was negligent in the conduct of its business when it extended unsecured loans to the debtors. Worse, it was in serious breach of its duty as the trustee of the MTI. It was not able to protect the interests of the parties and was even instrumental in violating the terms of the MTI, to the detriment of the parties thereto. Thus, petitioner has only itself to blame for being left with insufficient recourse against petitioner under the assailed MTI.


x x x."

LACHES not present

See -  http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/180974.htm

"x x x .

We shall first discuss the issue of laches.

Laches is defined as the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.[24]  

In the case at bar, the RTC in Civil Case No. 00-942 held that laches attached when respondents allowed eight (8) years to pass before questioning the mortgage, which was constituted in 1990.  Thus, the trial court said:

As it appears now, the mortgage on the land and building of Centro was first constituted in 1990 in favor of [the] Bank of the Philippine Islands. Individual plaintiffs stated that discovery of the mortgage was “sometime in 1998”, (par. 6, Affidavit of Chongking Kehyeng). He was in the Board of Directors of Centro and he holds office at the fourth floor of the building on the mortgaged property. There is evidence that the holding of meetings of the Board of Directors was irregular and purely “reportorial”.

Considering that as shown by planitiffs’ evidence, conduct of business in Centro was informal, vigilance over its property was required from all individual plaintiffs, particularly plaintiff Chongking Kehyeng who sits in the Board of Directors. Periodic inquiries and verification of documents pertaining to corporate properties should have been done and the existence of the mortgage was verifiable. A simple inquiry about the status of the title, information on the title number and actual verification with the Register of Deeds – a task which can be accomplished in an hour or two –will provide information about the existence of the mortgage. None of the individual plaintiffs did this.

The inaction of the plaintiffs for which no explanation was submitted resulted in the acquisition of rights by the defendant Bank adverse to them. Such neglect, taken in conjunction with the lapse of time of about eight (8) years operates as a bar.[25]

A perusal of the TCTs[26] of the subject properties would reveal that only the values of the mortgage securing the loans totalling ₱144 million were annotated, based on the MTIs executed on 21 March 1990, 31 March 1993 and 28 July 1994. As for the last annotation, it only stated that petitioner was the successor-trustee to all obligations due to the creditors. Respondents, in their Complaint, did not question these mortgages constituted by the MTIs executed on 21 March 1990, 31 March 1993 and 28 July 1994, respectively. What they questioned was the additional loans granted to San Carlos after the execution of the 27 September 1994 MTI and the foreclosure of the mortgage resulting from the nonpayment of San Carlos’ obligations. Thus, contrary to the finding of the trial court, only four years had lapsed from the execution of the 27 September 1994 MTI when respondents questioned the mortgage allegedly constituted to cover these loans.

Furthermore, as mentioned earlier, the TCTs were not accordingly annotated to cover these additional loans. Also, the mortgage of the property securing all the loans were not disclosed in Centro’s financial statements for the years 1991 to 1998.[27] Thus, absent any proof that the individual respondents were notified of the stockholders’ meeting on 12 August 1994 or that they were present during the meeting, these respondents could not have been informed of the alleged additional loans and the corresponding mortgage constituted over the properties.

It cannot therefore be said that laches had attached and that respondents were already barred from assailing the MTI in 1998. We now proceed to discuss the validity of the challenged MTI.

The 18 August 1994 Secretary’s Certificate issued by Maria Jacinta V. Go reads as follo

x x x."

Questions of fact are beyond the coverage of a petition for review oncertiorari.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/198402.htm

"x x x.

First, the petition raises questions of fact which are beyond the coverage of a petition for review oncertiorari.  The settled rule is that only questions of law may be raised in a petition under Rule 45 of the Rules of Court.  It is not this Court’s function to analyze or weigh all over again evidence already considered in the proceedings below, our jurisdiction being limited to reviewing only errors of law that may have been committed by the lower court.  The resolution of factual issues is the function of the lower courts, whose findings on these matters are received with respect.  A question of law which we may pass upon must not involve an examination of the probative value of the evidence presented by the litigants.[12]  This is in accordance with Section 1, Rule 45 of the Rules of Court, as amended, which reads:

Section 1.  Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari.  The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth.  The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (Emphasis supplied)

          Significantly, Section 5, Rule 45 provides that the failure of the petitioner to comply with the requirements on the contents of the petition shall be sufficient ground for the dismissal thereof.  While jurisprudence provides settled exceptions to these rules, the instant petition does not fall under any of these exceptions.

          On the same ground that petitions under Rule 45 must not involve questions of fact, the petitioners’ prayer for this Court to admit what they claimed to be newly discovered evidence is hereby denied.  The Supreme Court is not a trier of facts, and is not the proper forum for the ventilation and substantiation of factual issues.[13]  While the Rules of Court allows the introduction by parties of newly-discovered evidence, as in motions for new trial under Rule 37, these are not to be presented for the first time during an appeal.  In addition, the term “newly-discovered evidence” has a specific definition under the law. Under the Rules of Court, the requisites for newly discovered evidence are: (a) the evidence was discovered after trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted, will probably change the judgment.[14]

          The two documents which the petitioners seek to now present are not of this nature.  Undeniably, the CENRO Certification and cadastral map annexed to the petition could have been produced and presented by the petitioners during the proceedings before the court a quo.  Further to this, the petitioners’ purpose for submitting the said documents is only to prove that the disputed property is a foreshore land that should have been declared owned by the State.  Thus, even granting that the documents may be admitted at this stage, the certification and cadastral map fail to support the petitioners’ claim of ownership over the disputed property.  On the contrary, these documents only negate their claim of ownership and better right to possess the land because foreshore land is not subject to private ownership, but is part of the public domain.  In Republic of the Philippines v. CA,[15] we thus held:

            When the sea moved towards the estate and tide invaded it, the invaded property became foreshore land and passed to the realm of the public domain.  In fact, the Court in Government vs. Cabangis annulled the registration of land subject of cadastral proceedings when the parcel subsequently became foreshore land.  In another case, the Court voided the registration decree of a trial court and held that said court had no jurisdiction to award foreshore land to any private person or entity.  The subject land in this case, being foreshore land, should therefore be returned to the public domain.[16] (Citations omitted)

We note that not even herein petitioners, but the Republic of the Philippines, is the real party in interest that is allowed to pursue such claims against lands of the public domain.[17]

            All told, this Court finds no justification to depart from the factual findings of the trial and appellate courts.  The petitioners failed to present any cogent reason that would warrant a reversal of the decision and resolution assailed in this petition.

x x x."

Cleanse the Judiciary | Inquirer Opinion

Cleanse the Judiciary | Inquirer Opinion

"x x x.

Now that Rene Corona is removed from his office through a process meriting keen public attention and opinion, and celebrated by most Filipinos as one singular achievement that drew global approval, we have to remember that the majority of the Supreme Court still sits as before, less one member. We also have to remember that the judiciary, the very practice of the legal profession, is not any less suspect as pliant, if not supportive, to the exercise of corruption. The impeachment trial of Rene Corona revealed the partisanship of the Judiciary, and the silence of most lambs in the legal profession. Many justices, judges and lawyers, including court employees openly supported Corona. They should understand that the vast majority of Filipinos, not less than 70%, who condemned Corona from the very beginning, condemned them as well.

Where, then, will reform in the judiciary come from? Who will be the first brave ones? Who among the thousands of judges and lawyers will speak and reach out to their colleagues, to their companeros, to begin an earnest and transparent move to cleans, not so much their ranks, but their values?  Who will begin to preach that justice is more primal than law, that justice is, in fact, the only reason why there is a course and profession called law? Justice cannot be overtaken in value by legal form and language, only enhanced and strengthened by them. Justice must be a guarantee for all Filipinos, not a favor. Justice must be constant, never fickle.

How, then, will the people, beginning with the poor and the lowly, the weak and the marginalized, believe that they, too, are entitled to justice as much as their richer or more powerful counterparts in Philippine society? P-Noy cannot make this happen—only Justices, judges and lawyers can. P-Noy can crack the whip, but justice is not his alone to dispense, not in a democracy. Justice is a collective value and its primacy in our society must be a collective decision. And the judiciary is tasked most of all to lead the charge, so to speak.

The next Chief Justice need not be the wisest among legal minds, not even the most incorruptible, but the one who will set reform in the Judiciary as his or her most urgent crusade. It can only be the relentless pursuit of reform from within that can slowly build a new hope in people, build a new faith that justice, indeed, is the right of all Filipinos.

Let not change in the judiciary be triggered by force or intimidation, even if such comes from the people themselves. It is not hate that drives Filipinos to seek change, it is pure aspiration. Let hope, then, stoked by sincere efforts for reform from the inside, lead us all in a journey to our promised land where justice is the first of all guarantees.

x x x."

SC rules Pres. Aquino can appoint next chief justice » Nation » News | Philippine News | philstar.com

SC rules Noy can appoint next chief justice » Nation » News | Philippine News | philstar.com

"x x x.

MANILA, Philippines - The Supreme Court (SC) ruled Thursday that President Benigno Aquino III has the authority to appoint the next chief justice and that the most senior justice of the high court can sit as chairman of the Judicial and Bar Council (JBC) in case of vacancy.

In a seven-page resolution, the SC en banc denied a petition seeking to stop the JBC from convening since there is vacuum in the position of chief justice who shall sit as chairperson of the JBC.

It dismissed the petition of taxpayer Famela Dulay for lack of merit and legal standing to pursue the case for she is not directly an affected party.

The SC said that the President can appoint the next chief justice following the letters of the 1987 Constitution, particularly Section 9 of Article VIII.

"...the phrase 'Member of the Supreme Court' was repeatedly used to refer not only to the Associate Justices of the Supreme Court but includes the Chief Justice. Thus, in Section 9 of the same Article VIII on the appointment of Justices and Judges, the phrase 'Members of the Supreme Court' clearly refers to the fifteen justices of the Court -- one Chief Justice and fourteen Associate Justices -- who are within the appointing power of the President," the SC resolution said.

The SC cited the case of Vargas v. Rilloraza which was decided under an older Constitution of the Philippines which states that "there can be no doubt that the Chief Justice and the Associate Justices required xxxxx to compose the Supreme Court are the regular members of the Court."

It also dismissed the argument that the JBC can only be chaired by the incumbent chief justice and no one else.

"We likewise do not agree with petitioner that the JBC can only be headed by the incumbent chief justice and no other. The petitioner, in effect, argues that the JBC cannot perform its task without an incumbent chief justice. To follow this logic would lead to an eventuality where a vacancy in the Judiciary will not be filled if a vacancy occurs in the JBC. We can likewise infer from this argument that if the Office of the Chief Justice is vacated, the same will not be filled because there will be no incumbent Chief Justice to act as Chairman of the JBC," the SC said.

It said that the principal function of the JBC is to recommend appointees to the Judiciary and "it cannot, therefore, be compromised only because the constitutionally-named Chairman could not sit in the JBC."

"Although it would be preferable if the membership of the JBC is complete, the JBC can still operate to perform its mandated task of submitting the list of nominees to the President even if the constitutionally named ex-officio Chairman does not sit in the JBC. This intention is evident from the exchanges among the Commissioners during the deliberations of the Constitutional 

Commission of 1986," the SC said.

It said that they must not be deprived of their representation since the most senior justice of the High Court, who is not an applicant for the Chief Justice post can preside over the JBC proceedings.

"Considering, however, that complete membership in the JBC is preferable and pursuant to its supervisory power over the JBC, this court should not be deprived of representation. The most senior justice of this Court who is not an applicant for the position of chief justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings in the absence of the said constitutionally named Ex-Officio Chairman," the SC added.

x x x."

On De Lima as new CJ - Emil Jurado

Two years, <br />no change


"x x x.

I must give credit to Secretary of Justice Leila de Lima for her unabashed sense of self-importance in accepting her nomination as Supreme Court chief justice.

De Lima knows she will not be accepted by insiders of the Supreme Court for defying a temporary restraining order on a watch-list order she had issued to prevent former President Gloria Macapagal Arroyo from leaving the country.

Still, de Lima claims she is fit to lead the Judiciary, which is supposed to be an independent branch of government.

I am flabbergasted when I think about the fact that she consulted the appointing power, President Noynoy Aquino, before she accepted her nomination.  Why would she do that? Is that her version of independence and probity?

But as I said, there should be no surprises under President Aquino.

***

x x x."

Piece-meal justice

Piece-meal justice


"x x x.

Thou shalt not ration justice,” is a commandment, “if we are to keep democracy,” United States federaljudge Learned Hand wrote before his death in 1961.

Here, “21 percent of trials take two to five years to finish, and 13 percent take more than five years,” Acting Supreme Court Chief Justice Antonio Carpio told a Central Luzon convention of the Integrated Bar. “There has to be a sea change… Judicial reform is simply too important to fail.”

Carpio pitched his address to an audience beyond the Integrated Bar of the Philippines: a nation scrambling to close the gap left by impeachment of its 23rd chief justice. The Senate fired Renato Corona by a 20-to-3 vote. It nailed the “capo” for stashing unreported dollars while fiddling with the Statement of Assets Liabilities and Net Worth.

The unsaid context were decisions by the Corona court that rationed justice. Crammed with justices handpicked by president Gloria Macapagal-Arroyo, the Corona majority served as bouncers for GMA’s interests, claim critics. Theyinclude President Benigno Aquino III. .

The Arroyo majority stitched a legal fig leaf for the “midnight appointment”of Corona, papered over Rep. Dato Arroyo’s gerrymandering in Camarines, then rammed through a temporary restraining order that would  have allowed Arroyo to flee. Now in hospital detenton, GMA denies charges of plunder and election sabotage.

Serial skewed decisions by the Arroyo justices eroded the Court’s moral high ground. Among others, these included repeated flip-flopping of 16 towns into cities to paralysis on the Philippine Airlines flight attendants and stewards case. It murmured “Amen”as Eduardo Cojuangco pocketed P16.2 million in San Miguel Corp. shares, funded by coco farmers levies. “The biggest joke to hit the century,” snapped then justice Conchita Carpio-Morales.

Carpio’s program jumpstarts the stalled Judiciary Reform program initiated by Chief Justice Hilario Davide. These include (a) case decongestion, (b) integrity and independence of judges, (c) compensation of judges, court administration, and training (d) Transparency and accountability. “Clean-house” measures, instituted the day after impeachment, underpin this road map for the future.

“Sunlight is the best disinfectant,” counseled Justice William O. Douglas, who served longest (almost 37 years) in the US Supreme Court. On his first day as acting chief justice, Carpio prodded once reluctant justices to direct judges: Disclose SALNs “as mandated by the Constitution and the law.”

It helped that Carpio opened his SALN long before the Corona conviction. “The Supreme Court has done this as part of the lessons learned from the recent impeachment tria,” he said. “Leaders of the judiciary must lead by example.”

Post on the Court’s website what were once kept hush-hush, Carpio directed. At the click of a computer mouse, you can surf today what former senator Rene Saguisag and researchers were repeatedly denied access to: reports on the Judiciary Development Fund and Special Allowance for Judges, plus those by the Commission on Audit.

“This is really a no-brainer since all these are public documents,” Carpio explained. “This is part of the new transparency and accountability policy.”

x x x."

Estafa

We are sharing the jurisprudence part of a pleading our law office filed in an Estafa case for legal research purposes of our readers.


"x x x.

  

OPPOSITION

(In Re: MOTION FOR RECONSIDERATION,

Dated June 18, 2012, Filed by the Accused/Respondent x x x.)

            THE COMPLAINANT x x x  , by counsel, respectfully states, by way of OPPOSITION to the MOTION FOR RECONSIDERATION of respondent x x x:

1.     The accused had been ARRAIGNED by RTC Branch 204 Muntinlupa City on June 27, 2012 in the presence of the Public Prosecutor assigned thereat. This fact can be easily confirmed by this Honorable Office with the said Public Prosecutor assigned at the said Branch and with the said Court itself.

The arraignment of the accused renders MOOT AND ACADEMIC her pending motion for reconsideration with this Honorable Office. It must therefore be DENIED.

X x x.

4.        In the case of LIBERATA AMBITO,  BASILIO AMBITO, and CRISANTO AMBITO vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, G.R. No. 127327, February 13, 2009, it was held that in the prosecution for Estafa under Article 315, paragraph 2(a) of the RPC,[1] it is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or at least simultaneously with, the delivery of the thing by the complainant; and that false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money.

5.        In PEOPLE OF THE PHILIPPINES vs. VIRGINIA BABY P. MONTANER, G.R. No.  184053, August 31, 2011, the accused was convicted for the crime of Estafa as defined and penalized under paragraph 2(d), Article 315 of the Revised Penal Code. The Information alleged that on or about May 17, 1996 in the Municipality of San Pedro, Province of Laguna and within the jurisdiction of this Honorable Court accused Virginia (Baby) P. Montaner did then and there willfully, unlawfully and feloniously defraud one Reynaldo Solis in the following manner: said accused by means of false pretenses and fraudulent acts that her checks are fully funded draw, make and issue in favor of one Reynaldo Solis ten (10) Prudential Bank Checks, all having a total value of FIFTY THOUSAND PESOS (P50,000.00) and all aforesaid checks were postdated June 17, 1996 in exchange for cash knowing fully well that she has no funds in the drawee bank and when the said checks were presented for payment the same were dishonored by the drawee bank on reax x x of “ACCOUNT CLOSED” and despite demand accused failed and refused to pay the value thereof to the damage and prejudice of Reynaldo Solis in the aforementioned total amount of P50,000.00. In the said case, the prosecution sufficiently established appellant’s guilt beyond reax x xable doubt for estafa under paragraph 2(d), Article 315 of the Revised Penal Code.  According to Solis’s clear and categorical testimony, appellant issued to him the 10 postdated Prudential Bank checks, each in the amount of P5, 000.00 or a total of P50, 000.00, in his house in exchange for their cash equivalent.  From the circumstances, the Court held that it was evident that Solis would not have given P50, 000.00 cash to appellant had it not been for her issuance of the 10 Prudential Bank checks.  These postdated checks were undoubtedly issued by appellant to induce Solis to part with his cash.  However, when Solis attempted to encash them, they were all dishonored by the bank because the account was already closed. Solis wrote appellant a demand letter dated October 13, 1996 which was received by appellant’s husband to inform appellant that her postdated checks had bounced and that she must settle her obligation or else face legal action from Solis.  Appellant did not comply with the demand nor did she deposit the amount necessary to cover the checks within three days from receipt of notice.  This gave rise to a prima facie evidence of deceit, which is an element of the crime of estafa, constituting false pretense or fraudulent act as stated in the second sentence of paragraph 2(d), Article 315 of the Revised Penal Code.

6.        In the case of BETTY GABIONZA AND ISABELITA TAN, PETITIONERS, VS. COURT OF APPEALS, LUKE ROXAS AND EVELYN NOLASCO, RESPONDENTS, [G.R. No. 161057, September 12, 2008], it was held that “to be clear, it is possible to hold the borrower in a money market placement liable for estafa if the creditor was induced to extend a loan upon the false or fraudulent misrepresentations of the borrower”; that “such estafa is one by means of deceit”; that “the borrower would not be generally liable for estafa through misappropriation if he or she fails to repay the loan, since the liability in such instance is ordinarily civil in nature”, except when deceit is present, of course. Thus:

“x x x.

This analysis is highly myopic and ignorant of the bigger picture. It is one thing for a corporation to issue checks to satisfy isolated individual obligations, and another for a corporation to execute an elaborate scheme where it would comport itself to the public as a pseudo-investment house and issue postdated checks instead of stocks or traditional securities to evidence the investments of its patrons. The Revised Securities Act was geared towards maintaining the stability of the national investment market against activities such as

those apparently engaged in by ASBHI. As the DOJ Resolution noted, ASBHI adopted this scheme in an attempt to circumvent the Revised Securities Act, which requires a prior license to sell or deal in securities. After all, if ASBHI's activities were actually regulated by the SEC, it is hardly likely that the design it chose to employ would have been permitted at all.

x x x.

It is ineluctable that the DOJ Resolution established a prima facie case for violation of Article 315 (2)(a) of the Revised Penal Code and Sections 4 in relation to 56 of the Revised Securities Act. X x x

X x x.”

WHEREFORE, premises considered, it is respectfully prayed that motion for reconsideration of the respondent/accused be DENIED for lack of merit.

            Las Pinas City, July 2, 2012.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for the Complainant

Unit 15, Star Arcade. C.V. Starr Ave.

Philamlife Village, Las Pinas City 1740

Tel. No. 8725443; Fax No. 8462539.

---

[1] Art. 315. Swindling (estafa). – Any perx x x who shall defraud another by any of the means mentioned herein below . . .

x x x

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.