Seeking relief through application for replevin

Dear PAO,
I have been separated from my husband. When we were still together, he bought a car on instalment basis, and I acted as the co-maker. The car was registered in his name. After the end of my contract for employment overseas, I discovered that my husband obtained also a job overseas and the car was left with my brother-in-law. I would like to recover the car considering that it belongs to the conjugal property, and somebody advised me to file a case for replevin. Is this remedy correct?
Gariet

Dear Gariet,
An application for replevin is governed by Rule 60 of the 1997 Rules of Court. Section 1 of the law provides, “A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.”

Under Section 2 of same rule, the applicant must show by his own affidavit or that of some other person who personally knows the facts:

a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information and belief;

c) That the property has not been distrained or taken for tax assessment or a fine pursuant to a law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that is exempt from such seizure or custody; and

d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

In your case, the application for replevin would not prosper. First, there must be a principal action for recovery of property before you can apply for replevin. Second, based on the above-enumerated requirements, it is essential that the applicant for replevin must be the owner of the property or must prove that he is entitled to its possession. From what you have stated in your letter, the car was registered in the name of your husband, thus, the latter is the proper party to file the case unless he will execute a special power of attorney authorizing you to file the case in his behalf. Your claim that the car belongs to the conjugal property has no connection with the issues in replevin.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Tax court denies PLDT appeal on jurisdiction grounds

THE COURT of Tax Appeals (CTA) has rejected a petition by Philippine Long Distance Telephone Co., Inc. (PLDT), ruling that a Makati court has no jurisdiction over the company’s dispute with Tuguegarao City over P2.455 million in unpaid franchise taxes.

In a 15-page decision promulgated June 17, the CTA, sitting en banc, voted 5-3 to deny PLDT’s petition against the CTA Second Division, which originally declared improper jurisdiction on the part of Makati Regional Trial Court Branch 132.

The CTA cited a similar case in Bataan which declared the proper venue to hear a dispute within the province to be the Balanga City RTC.

It added that though PLDT headquarters is in Makati, the Makati RTC cannot “order respondents to cease and desist from assessing and collecting... business tax in addition to the franchise tax based on the same gross receipts.”

The CTA cited Section 21 of Batasang Pambansa (BP) 129 which states that “injunctive writs issued by an RTC are enforceable only within the judicial region where such court belongs,” emphasizing that the correct lower court to handle the case is the RTC of Tuguegarao.

The ruling was written by Associate Justice Esperanza R. Fabon-Victorino and concurred in by Associate Justices Juanito C. Castañeda, Jr., Erlinda P. Uy, Cielito N. Mindaro-Grulla and Caesar A. Casanova.

Dissenting were Associate Justices Lovell R. Bautista, Ma. Belen M. Ringpis-Liban and Presiding Justice Roman G. del Rosario.

In 2006, the company was compelled to pay franchise tax in Cebu City as ordered by the Supreme Court amounting to P432,468.75 after it failed to make payments from 1999-2003.

PLDT challenged Cebu City in 2004 on the imposition of franchise tax, claiming it is exempt.

Hastings Holdings, Inc. -- a unit of PLDT Beneficial Trust Fund subsidiary MediaQuest Holdings, Inc. -- has a stake in BusinessWorld through the Philippine Star Group, which it controls.

source:  Businessworld

Notarization invested with substantive public interest

Dear PAO, 
My sister used to own a parcel of land in Taguig City (Metro Manila). She has no heirs because she was single when she died. One year after her death, I found out that there was a man who tried to transfer in his name the certificate of title in the name of my sister covering her lot. The basis of the application or cancelation of title in his name is a deed of sale allegedly executed between him and my sister. I also discovered that the document was notarized by a lawyer one year after the death of my sister.

Does the notary public have any liability for notarizing a deed of absolute sale even if the seller was already dead?
Pol

Dear Pol,
The notary public may be made liable for notarizing a document without requiring the seller to personally appear before him. This is in consonance with Section 2(b) of Rule IV of the 2004 Rules on Notarial Practice, which requires that “a person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.”

The Supreme Court in Agbulos vs Viray, A.C. No. 7350 (February 18, 2013) had expounded the roles of the notary public by stating that:

“To be sure, a notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. Without the appearance of the person who actually executed the document in question, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed.”

As aptly observed by the court in Dela Cruz-Sillano v. Pangan:

“The court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.”

The court has repeatedly emphasized in a number of cases the important role a notary public performs, to wit:

x x x Notarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Terminal justice at NAIA

Special prosecutors will be stationed at the Ninoy Aquino International Airport (NAIA) to conduct on-the-spot inquest proceedings particularly in cases of alleged illegal possession of ammunition by travelers transiting the country’s premier gateway.

Department of Justice spokesman Emmanuel Caparas said at least one prosecutor has been assigned since last week at the NAIA as part of measures put in place by the DOJ and the Manila International Airport Authority (MIAA) to curb an alleged bullet-planting (tanim-bala or laglag-bala) extortion scheme at the airport.

The assignment of special prosecutors followed a move by the Public Attorney’s Office, which offered immediate legal assistance to victims of the alleged extortion scheme.

“Through this, we are trying to avoid incidents where passengers are not allowed to board their flight because may suspicion na may dala silang bala [that they carry bullets],” Caparas said. “In the inquest proceedings, the prosecutor will find out the circumstances how the bullet was found and determine if the traveler was really a carrier or the bullet was placed by accident or deliberately planted,” he added in Filipino.

Caparas said the purpose of the on-the-spot inquest was not to determine probable cause but merely to make an initial assessment of the case. After the assessment, the traveler could be released and allowed to board his or her flight.

But in case the assessment leads to the filing of a formal complaint, the traveler will have to face the charge once he returns to the country.

The DOJ spokesman said more meetings would be held to further streamline the plan.
Caparas, moreover, said a National Bureau of Investigation (NBI) task force will submit on Monday its findings on the alleged extortion scheme.

He added that the task force had actually submitted a preliminary report but it remains “inconclusive.”

Boiden Ballalo, an overseas Filipino worker (OFW) who was apprehended at NAIA Terminal 1 for possessing a .22 caliber bullet, was allowed to leave for Taiwan after the case filed against him for illegal possession of ammunition was dismissed.

Ballalo was intercepted by Office of Transport Security screeners after an X-ray image showed a bullet in his wallet.

According to Rose Ballalo, wife of the OFW, her husband finally left Manila onboard a China Airlines flight for Taipei. She said if not for the Public Attorney’s Office (PAO) intervention and the help from the Volunteers Crime Against Corruption, Boiden might have been charged.

Also on Friday, two more passengers were apprehended for possessing bullets. The Philippine National Police Aviation Security Group (Avsegroup) did not identify the passengers, but said they are under questioning.

According to the Avsegroup director, Chief Supt. Pablo Francisco Balagtas, a passenger headed for Hong Kong was caught at  NAIA Terminal 3 when a screener noticed something resembling a bullet inside her bag. The bag later yielded a 5.56 bullet which the woman said was her anting-anting (amulet).

The other was a male passenger bound for Puerto Princesa who was intercepted at NAIA Terminal 4. The bullet was found in his handcarried bag.

source:  Manila Times

Only SC can dismiss cases vs lawyers under new rules

MANILA, Philippines — Now, only the Supreme Court could dismiss complaints against lawyers.

This after the high court revised rules on the discipline of members of the bar, directing the Integrated Bar of the Philippines (IBP), the organization of all lawyers in the country, to revise its internal rules on administrative cases in accordance with the amendment.

“The power to dismiss a complaint against a lawyer rests solely with the Supreme Court and cannot be delegated to the IBP,” said the high court in a statement on Tuesday.

In amending Rule 139-B of the Rules of Court, the high court limited the IBP’s power over administrative cases to making recommendations upon hearing, unlike before when the organization could dismiss complaints at its level.

With the amendment, only the Supreme Court can dismiss a case against a lawyer or impose penalties.

“Section 5 of Bar Matter No. 1645 now only grants the IBP recommendatory powers: “[i]f the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the Investigator will recommend to the Board of Governors the dismissal of the complaint,” the high court said.

The high court said such an amendment was pursuant to Article VIII, Section 5(5) of the 1987 Constitution, which has vested upon the high court “the power to promulgate rules concerning the admission to the practice of law.”  SFM

source: Philippine Daily Inquirer

Indigents exempted from paying filing fees

Dear PAO,
I am writing for my mother whose date of birth was erroneously entered in their marriage contract. To correct the date, my mother has to file a Petition for Correction of Entry in the Office of the Local Civil Registrar. Is there a chance that my mother can be exempted from paying the fees for the filing of the petition?
Chloe

Dear Chloe,
The enactment of Republic Act (R.A.) No. 9048 simplified the process of correcting erroneous entries in the civil registry, which are regarded as typographical or clerical errors. Civil registrars and consul generals were authorized by the said law to correct these erroneous entries. This is according to Section 1 thereof, which was amended by R.A. No. 10172, which reads as follows:

“SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.”

Assuming that the error in your parents’ marriage contract is clerical or typographical error, indeed a petition before the Local Civil Registrar may be filed to correct the same. However, a fee shall be collected before the petition is acted upon by the said officer. To be exempt from the payment of the said fee, it must be proven that the petitioner is indigent. This is according to Section 8 of the said law as amended by R.A. Act No. 10172,which provides:

“SEC. 8. Payment of Fees. The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee.

xxx”

In the same vein, an indigent petitioner refers to a destitute, needy and poor individual who is certified as such by the social welfare and development office of the city/municipal government. (2.7, Rule 2, Administrative Order No. 1, Series of 2001, Rules and Regulations Governing the Implementation of Republic Act No. 9048)

Based on the foregoing discussion, to be exempted from paying the required filing fee for the abovementioned petition, your mother has to prove that she is indigent. This can be done through a certification to be issued by the local social welfare and development office in your locality, certifying among other things that your mother is indigent.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

By the SC, not by the UN

The United Nations (UN) Working Group on Arbitrary Detention (WGAD) was widely reported to have opined that “the detention of former President [Gloria Macapagal] Arroyo (GMA) was arbitrary and illegal under international law … with an enforceable right to compensation.”

Bail denied. Commenting on this opinion obtained by international celebrity lawyer Amal Alamuddin Clooney, Communications Secretary Herminio Coloma Jr. said that GMA “has been accorded due process and has availed herself of various legal remedies … in Philippine courts, which have sole jurisdiction to decide on such matters.”

And may I add that the controversy is about a mere “opinion” of a UN “working group” which does not have the coercive power of a treaty, or a customary international law, or a decision made after trial and hearing of an international tribunal like the International Court of Justice, or the International Criminal Court, or of the International Tribunal for the Law of the Sea, where the Philippine claim in the West Philippine Sea is being heard.

GMA faces two major suits: (1) electoral sabotage, a capital offense, in the regional trial court (RTC) of Pasay for her alleged role in the manipulation of the 2007 election results in Maguindanao, and (2) plunder, also a capital offense, in the Sandiganbayan (SBN) for her alleged participation in the illegal use of P366 million in funds of the Philippine Charity Sweepstakes Office (PCSO).

She was granted bail by the RTC (affirmed by the Court of Appeals) because the prosecution failed to prove that “the evidence of guilt is strong.” However, the SBN denied her plea for bail in the PCSO case.

After the prosecution finished presenting its evidence in the PCSO case, the defense filed a “demurrer” on the ground that the evidence presented had failed to prove GMA’s guilt beyond reasonable doubt.

Demurrer also denied. However, a Special SBN Division of five, voting 3-2, denied the demurrer and ruled that the prosecution has proven her guilt beyond reasonable doubt, and asked her to present countervailing evidence. Otherwise, she would be at risk of conviction.

Significantly, and this was noted in the WGAD opinion, the demurrer of her four coaccused (former PCSO chair Manuel Morato, former PCSO board members Raymundo Roquero and Jose Taruc, and former Commission on Audit chair Reynaldo Villar) was granted, resulting in their acquittal.

The charge against another coaccused, former PCSO chair Sergio Valencia, was downgraded to malversation. Since this is not a capital offense, he was allowed to post a bail bond of P500,000. Only GMA and another coaccused, former PCSO executive Benigno Aguas, were neither acquitted nor granted bail.

Failing in her bid for demurrer and bail, GMA filed a motion in the SBN to change her confinement from the Veterans Memorial Medical Center to her home at 14 Badjao Street, La Vista, Quezon City. In view of the recent WGAD opinion, she is renewing her plea for bail.

Equal protection. I believe, however, that more compelling than the WGAD opinion—which, as Coloma correctly pointed out, is not binding on our judiciary—is the recent Supreme Court decision (Ponce Enrile vs Sandiganbayan, Aug. 18, 2015) granting bail to Sen. Juan Ponce Enrile.

Bail was allowed, not because the prosecution (the Office of the Ombudsman) failed to present “strong” evidence of guilt, but because of (1) Enrile’s “fragile” health (uncontrolled hypertension, arrhythmia, coronary calcifications, and exacerbations of asthma-COPD overlap syndrome) and (2) advanced age (“already over 70 years old at the time of the alleged commission of the offense”).

Veering away from “strong evidence of guilt” as the only constitutionally-mandated ground to grant bail in capital offenses, the Court said that the SBN “arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial…”

True, this 8-4 decision was heavily criticized by the dissenting opinion of Justice Marvic M.V.F. Leonen. However, whether we agree with it or not, once affirmed to be final (through a denial of the pending motion for reconsideration), it becomes a binding precedent.

Citing the equal protection of the law, GMA’s lawyers could obtain bail if they can show that, like Enrile, she is not a flight risk because of her fragile health and advanced age.

Ineluctably, GMA could secure her longed-for temporary liberty because of that Supreme Court decision, not of the much-publicized WGAD opinion.

source:  

WITH DUE RESPECT 

By: Artemio V. Panganiban

Philippine Daily Inquirer